THE  AMERICAN 
CONSTITUTIONAL   SYSTEM 


Ube  Hmerican  State  Series 


Eight  volumes  describiug  comprehensively 
the  manner  in  whicli  the  Groverumental  agen- 
cies of  the  American  State  are  organized  and 
administered. 

Edited  by  W.  W.  WILLOUGHBY, 

Associate  Professor  of    Political   Science  at 

the  Johns  Hopkins  University. 

Each  about  320  pages,  $1.25  net. 


THE  AMERICAN  CONSTITUTIONAL  SYSTEM. 
An  introduction  to  the  series,  by  tbe  Editor. 

CITY  GOVERNMENT  IN  THE  UNITED  STATES. 
By  F.  J.  GooDNow.  Professor  of  Administrative  Law, 
Columbia  University. 

PARTY  ORGANIZATION  By  Jesse  Mact,  Profes- 
sor of  Political  Science  at  Iowa  College. 

THE  AMERICAN  EXECUTIVE  AND  EXECUTIVE 
METHODS.  By  President  J.  H.  Finlky,  College 
of  the  City  of  New  York. 

AMERICAN  LEGISLATURES  AND  LEGISLA- 
TIVE METHODS.  By  Professor  Paul  R.  Reinsch, 
University  of  Wisconsin. 

THE  AMERICAN  JUDICIARY.  By  Simeon  E. 
Baldwin,  Associate  Justice  of  the  Supreme  Court  of 
Errors  of  Connecticut,  and  Professor  of  Constitutional 
Law  in  Yale  University. 

TERRITORIES  AND  COLONIES.  By  W.  F.  WiL- 
LOUGHBY,  Treasurer  of  Porto  Rico. 

LOCAL  GOVERNMENT  IN  THE  UNITED  STATES 
(CITIES  EXCEPTED).  By  Professor  John  A. 
Faiblie,  University  of  Michigan. 


C;bc  Century  Co.,  mew  lorh 


Xrbe  Bmerican  State  Series 

THE  AMERICAN 
CONSTITUTIONAL  SYSTEM 


AN   INTRODUCTION   TO   THE   STUDY 
OF   THE  AMERICAN   STATE 

BY 
WESTEL  WOODBURY  WILLOUGHBY 

ASSOCIATE   PROFESSOR   OP   POLITICAL    SCIENCE 
AT   THE   JOHNS   HOPKINS   UNIVERSITY 


NEW  YORK 

THE   CENTURY   CO. 

1904 


T 


Copyright,  1904,  by 
The  Century  Co. 


The  DeVinne  Press 


-A 
If 


PREFACE 

In  the  series  of  volumes  bearing  the  title  ' '  The  Amer- 
ican State, ' '  to  which  this  work  is  intended  to  serve  as 
an  introdilction,  there  will  be  described  in  detail  the 
manner  in  which  the  governmental  agencies  of  this 
country— federal,  state,  and  local— are  organized  and 
operated.  The  aim  of  the  present  essay  is  to  prepare 
the  way  for  this  descriptive  work  by  disclosing  the  con- 
stitutional character  of  the  American  State,  explain- 
ing the  status  of  its  various  territorial  subdivisions, 
and  indicating  the  extent  of  the  powers  of  their  several 
governments.  In  order  to  do  this  it  has  not  been 
thought  necessary  or  appropriate  to  prepare  a  compre- 
hensive treatise  upon  United  States  constitutional  law. 
Considered  as  but  an  introduction  to  the  volumes  that 
are  to  follow,  it  has  been  conceived  that  the  scope  of 
this  study  should  not  include  more  than  a  determina- 
tion of  the  constitutional  character  of  our  compli- 
cated federal  system,  and  a  statement  of  the  general 
principles  in  accordance  with  which  the  legal  powers 
of  its  various  governmental  agencies  are  ascertained. 
The  fact  is  therefore  to  be  emphasized  that  no  at- 
tempt is  made  in  this  volume  even  to  enumerate  the 

V 

670544 


PREFACE 


specific  powers  possessed  by,  or  the  limitations  im- 
posed upon,  the  several  organs  of  the  federal  and 
state  governments,  much  less  to  follow  out  in  detail 
the  manner  in  which  these  powers  and  limitations  have 
been  interpreted  and  applied.  Indeed,  it  is  not  the 
collective  purpose  of  the  volumes  that  are  to  follow 
to  do  this.  As  indicated  above,  the  aim  of  these  vol- 
umes is  to  be  a  description  of  the  political  agencies  of 
the  American  State,  and  an  explanation  of  the  manner 
in  which  they  are  actually  operated.  With  the  specific 
activities  of  our  governments,  such,  for  example,  as 
the  federal  regulation  of  interstate  commerce  or 
Bankruptcy,  the  state  control  of  corporations  or  manu- 
factures, or  the  municipal  ownership  or  regulation  of 
public  utilities,  these  studies  are  not  to  be  primarily 
concerned.  It  may  be  said,  however,  that  should  this 
series  meet  with  the  approval  of  the  reading  public, 
another  series  will  probably  be  published  dealing 
specifically  with  the  activities  of  the  American  States, 
the  individual  volumes  of  which  will  be  devoted  to  the 
consideration  of  such  topics  as  "The  American  State 
and  Trade  and  Commerce,"  "The  American  State 
and  Labor,"  "The  American  State  and  Education," 
etc. 

Returning  now  to  the  statement  of  the  particular 
purpose  of  the  introductory  essay  here  presented  to 
the  public,  it  will  be  found  that  the  author  has  first 

vi 


PREFACE 


attempted  to  ascertain  the  constitutional  character  of 
the  American  State ;  that  is  to  say,  to  determine  whe- 
ther, in  it,  ultimate  sovereignty  is  to  be  found  located 
in  the  United  States,  viewed  as  a  single  national  en- 
tity, or  in  the  constituent  commonwealths,  or  divided 
between  the  Federal  State  and  its  political  members. 
This  fundamental  question  having  been  answered,  he 
has  essayed  to  explain  the  manner  in  which,  in  actual 
practice,  the  integrity  of  our  national  government  and 
the  supremacy  of  its  laws  have  been  secured  without 
at  the  same  time  destroying  that  independence  of  ac- 
tion on  the  part  of  the  individual  States  which  is  char- 
acteristic of  the  federal  system.  This  has  involved 
the  giving  of  answers  to  such  questions  as  the  follow- 
ing: Do  the  States,  or  did  they  ever,  have  a  consti- 
tutional right  to  secede  from  the  Union?  Have  they 
the  right  or  power  to  nullify  a  federal  law  which  they 
deem  obnoxious  or  unconstitutional;  and,  if  not, 
where  else  is  to  be  found  a  security  against  unconsti- 
tutional action  on  the  part  of  the  General  Govern- 
ment? In  case  of  a  refusal  by  States,  or  their  peo- 
ples, to  perform  the  functions  constitutionally  laid 
upon  them,  or  an  attempt  upon  their  part  to  resist 
the  operation  of  federal  laws,  what  legal  means  of 
coercion  are  open  to  the  General  Government?  To 
what  extent  may  the  United  States  control  the  form 
of  governments  established  and  maintained  by  the 

vii 


PREFACE 


States?  To  what  extent  may  it  supervise  or  compel 
the  exercise  by  them  of  their  ordinary  functions? 
What  is  the  status  of  territories  belonging  to  the 
United  States,  but  not  included  within  the  boundaries 
of  any  of  the  states?  How  may  such  territories  be 
acquired,  and  what  powers  for  their  government  are 
constitutionally  possessed  by  the  Union?  These,  and 
other  similar  questions  which  have  to  be  answered  be- 
fore one  can  have  an  adequate  understanding  of  the 
nature  of  the  American  Constitutional  System,  and  a 
knowledge  of  the  manner  in  which  its  successful  op- 
eration is  secured,  are  examined  in  the  light  of  mod- 
ern political  theory,  and  the  latest  decisions  of  the 
Supreme  Court  of  the  United  States. 

As  regards  the  general  method  of  presentation 
adopted,  it  may  be  said  that  in  very  many  instances 
the  authoritative  language  of  the  Supreme  Court  has 
been  very  closely  followed.  "When  space  has  per- 
mitted, it  has  been  deemed  proper  to  give  the  exact 
words  of  that  tribunal. 

The  terms  "Federal  Government,"  "General  Gov- 
ernment," and  "National  Government"  have  fre- 
quently been  used  where  technical  exactness  would 
have  demanded  the  employment  of  "Federal  State," 
' '  General  State, ' '  and  * '  National  State. "  In  so  doing, 
however,  the  author  has  followed  the  general  practice 
not  only  of  other  writers,  but  of  the  courts,  and  in 

viii 


PREFACE 


no  instance,  it  is  believed,  has  the  meaning  been  ob- 
scured. Where  the  Supreme  Court  has  been  spoken 
of,  without  other  qualification,  the  highest  federal  tri- 
bunal has  been  meant. 

Dealing  as  this  volume  does  with  the  principles  or 
philosophy  of  our  constitutional  system,  it  is  hoped 
that  it  will  be  found  not  only  interesting  to  the  general 
reader  but  serviceable  as  a  text-book  for  academic 
classes  beginning  the  study  of  the  public  law  and  po- 
litical practice  of  our  country, 

W.  W.  W. 

Johns  Hopkins  University, 

Baltimore,  Maryland,  July,  1905. 


IX 


CONTENTS 

PAGE 

Cases  Cited    .     .    ,    .    »     ,    »    .     »    .     .    .    .   xiii 

CHAPTER 

I  The  Nature  of  the  "  Federal  "  State    ...      3 
II  The  Nature  of  the  American  State  ....     12 

III  The  Development  of  National  Sovereignty  .     34 

IV  Secession:  Coercion  of  States:  Reconstruc- 

tion       61 

V  The  Supremacy  of  Federal  Law 100 

VI  Federal  Control  of  State  Governments    .     .  Ill 

VII  Federal  and  State  Autonomy 122 

VIII  Federal  and  State  Powers 135 

IX  Coercion  of  State  Action       154 

X  Federal  Supervision  of  State  Duties     .     .    .  180 

XI  The  Power  of  the  United  States  to  Acquire 

Territory 190 

xii  The  Modes  in  which,  and  Purposes  for  which, 
Territory  may  be  Acquired  by  the  United 
States 198 

XIII  The  Constitutional  Status  of  Territories: 

THE  Political  Rights  of  their  Inhabitants  .  205 

XIV  The  Constitutional  Status  of  Territories: 

THE  Civil  Rights  of  their  Inhabitants    .     .  215 

XV  Citizenship 241 

xi 


CONTENTS 

CHAPTER  PAGE 

XVI  The  Political,  Status  of  Indians 250 

XVII  The    Citizenship    op   Inhabitants    of   Ceded 

Territories 257 

xvni  Admission  of  New  States 263 

XIX  Interstate  Relations 272 

Bibliographical  Note 291 

Constitution  of  the  United  States    ....  300 

Index  319 


Xll 


CASES   CITED 


Ableman  v.  Booth   (21  How., 

506),  59,  65,  169 
Adams    Express     Co.    v.    Ohio 

State    Auditor     (165    U.    S., 

194),  129 
Alexander's,  Mrs.,  Cotton   (2 

Wall.,  404),   84 
American  Insurance  Co.  v.  Can- 
ter   (1   Pet.,   511),   194,   206, 

213,  258 
Andrews  v.  Andrews   (188 

U.  S.,  14),  277 
Antoni  v.  Greenhow  (107  U.  S., 

769),  177 
Atherton  v.  Atherton  (181 

U.  S.,  155),  276 

Barron  v.  Baltimore  (7  Pet., 

243),  151 
Barron  v.  Burnside   (121  U.  S., 

186),  172 
Bell  V.  Bell  (181  U.  S.,  175), 

276 
Benner  v.  Porter  (9  How.,  235), 

209 
Blake  v.  McClung  (172  U.  S., 

239),  281,  283 
Board  of  Liquidation  v.  Mc- 

Comb  (92  U.  S.,  531),  178 
BoUn  V.  Nebraska  (176  U.  S., 

83),  267 
Boyd  V.  Thayer  (143  U.  S., 

135),  258 
Briscoe   v.    Bank   of   Kentucky 

11  Pet.,  257),  56,  130 
Brown  v.  Houston  (114  U.  S., 

622),  139 


Brown  v.  Maryland  (12  Wh., 
419),  126 

Cardwell     v.     American     Eiver 

Bridge  Co.   (113  U.  S.,  205), 

138 
Carleton  v.  Eugg  (149  Mass., 

550),  189 
Chappell  V.  United  States   (160 

U.  S.,  499),  131 
Charles    River    Bridge    Co.     v. 

Warren  Bridge  Co.   (11  Pet., 

420),  57 
Cherokee  Nation  v.  Georgia  (5 

Pet.,  1),  288 
Chinese  Exclusion  Cases  (130 

U.  S.,  581),  149 
Chirac  v.  Chirac  (2  Wh.,  259), 

138 
Chisholm  v.  Georgia  (2  Dall., 

419),  37,  289 
City  of  New  York  v.  Miln  (11 

Pet.,  102),  57 
Civil  Rights  Cases  (109  U.  S., 

3),  182,  184 
Clinton  v.  Englebrecht   (13 

Wall.,  434),  205 
Cohens  v.  Virginia  (6  Wh., 

264),  48,  50,  51,  164 
Collector  v.  Day  (11  Wall., 

113),  130 
Cooley  V.  Board  of  Wardens 

(12  How.,  300),  138 
Corfield  i'.  Coryell  (4  Wash., 

C.  C,  371),  279 
Craig  V.  Missouri  (4  Pet.,  410), 

52 


XIU 


CASES  CITED 


Cross  V.  Harrison  (16  How.,  Green  v.  Biddle  (8  Wh.,  1),  52, 

193),  211  285 

Green  v.  Neal  (6  Pet.,  219), 

Dartmouth  College  v.  Wood-  ^^^ 

ward  (4  Wh.,  518),  203  .           ,,o^tt« 

Debs,  In  re  (158  U.  S.,  564),  Hans  v.  Louisiana   (134  U.  S., 

102  ^^'    ^^^ 

De  Geofroy  v.  Eiggs   (133  ^'i^*™''^,!:- P^^^^^^"^  (^^^ 

U   S     ^58^    219    240  ^"      '  "'-)?  1'" 

De  Lima"i'.  Bidwell  (182  U.  S.,  Havvaii  v.  Mankichi  (190  U.  S., 

1)    195   ^07   216  1^^)>    '^^^ 

Dobbins  'v.    Commissioners    of  Headmoney   Cases    (112   U.   S., 

Erie  County    (16  Pet.,   435),  580),   143 

226  Hepburn  v.  Ellzey  (2  Cr.,  445), 

Dooley  v.  United  States  (182  ^39,   288 

U   S    222)    199  Home   Insurance   Co.   v.    Morse 

DownesT  Bidwell   (182  U.  S.,  ,    (-0   Wall.,    445),    171 

244)    217  Houston  v.   Moore   (5  Wh.,   1), 

Doyle  V.  Continental  Insurance  ^^' 

Co.  (94  U.  S.,  535),  171  ,                  „  .      ,    ^ 

^                '         ^'  Jones    V.    United    States     (137 

TT     S      *^09~i      149     194     197 

Elk  i;.  Wilkins  (112  U.  S.,  94),  .V^^  ^•'    ""-'''    ^*^'    ^^*'    ^^'' 

251 

Elmendorf  t;.  Taylor    (10  Wh.,  ^^^^^^  ^,    Colorado  (185  U.  S., 

lOij),  IvjZ  1'''5")     "^SS 

Escanaba     ^.     Lake     Michigan  ^^f^^  ;.  Qark  (97  U.  S.  454), 

Transportation    Co.    (107    U.  gg                      ^                         ^' 

S.,  678),  267  Kentucky    v.    Dennison     (24 

How., '66),   57,    162 

Fleming  v.  Page  (9  How.,  603),  Knox  v.   Lee    (12   Wall.,   557), 

199  98,    148 
Fletcher  v.  Peck  (6  Cr.,  87),  44 

Ford-u.  Surget  (97  U.  S.,  594),  Lane     County     v.     Oregon     (7 

81  Wall.,    76),    94 

Fourteen     Diamond     Rings     v.  Lemmon     v.     People     of     New 

United    States     (183    U.    S.,  York    (20   N.   Y.,    607),    279 

176),  217  License   Cases    (5   How.,    504), 

57 

Gassies  v.  Ballon  (6  Pet.,  761),  Loughborough  v.  Blake  (5  Wh., 

243  317),   228,   239 

Gelpcke  v.  Dubuque  (1  Wall,  Louisiana  v.  Jumel   (107  U.  S., 

175),   134  711),   175 

Gibbons  v.  Ogden    (9  Wh.,   1),  Louisiana  v.  Texas   (176  U.  S., 

52.  1),   288 

Gonzales  v.  Williams    (24  Sup.  Luther  v.  Borden   (7  How.,  1), 

Ct.  Reporter,  177),  262  118 

xiv 


CASES   CITED 


Lynde    v.    Lynde    (181    U.    S.,  Osborn     v.     Bank     of     United 

183),   277  States  (9  Wh.,  738),  52,  100, 

174 
McCulloch  V.  Maryland  (4  Wh., 

MccSoiV':    vfr'ginfa     (172  PauU'- Virginia  (8  Wall.,  168), 

McKim'..'voyes'(7  Cr.,  279),  ^'^^^J^l^,  ""'^  ^''  ^-  ^^ 

,,     ,               T,T    T         /1   ^  Pensaeola     Telegraph     Co.     v. 

fQ^N^^^Q   ^^''''''"''  (^  ^'■•'  Western  Union  Telegraph  Co. 

^/r      V'n        XT  1          /i^i   TT    a  (96  U.  S.,  1),  283 

fcof    i7n        ""^^  ^                   '  Poindexter  v.  Greenhow  (114 

o»9),    170  -g    g     270)    177 

^W^  .'o4?"4«''.'n  ^o'r%«^  Pol\aTd\   Lessee   t-.   Hagan    (3 

Wh.,  304),  48,  50,  105,  138  jj^^^,     oi9)    054 

^58n"l8''7   ^'''''    ^^^^    ^'    ^■'  ^°^*^  ^'  ^^^'''^^^  ^^^  ^'^*-'  ^^^^' 

^^o^of^i"";   ^''^"'^    ^^^    ^^''^■'  PrigJ  ^.  Pennsylvania  (16  Pet., 

ZJo),   114  539")    58    158 

Merryman,  Ex  parte   (Cs^mp-  p^^^^'^^^^'^   (9  Black,  635),  84 

bell's  Reports,  246),  148  ^               7/7 

^'roN'''o?fPP^'''^"  ^^^  ^^"•'  Kice  V.  Foster  (4  Harr.,  479), 

IbZ),    J_l  j^j^ 

Mississippi  ^.Johnson  (4  Wall.,  j^^^^.^_  jj.^^j^  ^^  (.^_^  241), 

475),  99,  -8J  gg 
Missouri  1;.  Illinois  (180  U.  S., 

208),  287 

Missouri    Pacific    R.    R.    v.  Scott  v.  Jones  (5  How.,  343), 

Humes  (115  U.  S,,  512),  189  271 

Monongahela     Navigation     Co.  Scott  v.  Sanford  (19  How., 

V.  United  States   (148  U.  S.,  393),  243 

312),  131  Sere  v.  Pitot  (6  Cr.,  332),  205 

Mormon      Church      v.      United  Shelby  v.  Guy  (11  Wh.,  361), 

States    (136   U.    S.,    1),    149,  133 

194,   195,   206,   207  Siebold,  Ex  parte  (100  U.  S., 

Murphy  V.  Ramsay   (114  U.  S.,  371),  102,  167 

15),   206,    208  Slaughter  House  Cases  (16 

Wall.,  36),  185,  245 

National     Bank     v.     Common-  South    Dakota    v.    North    Caro- 

wealth   (9  WaU.,   353),  126  Una    (24   Sup.    Ct.   Reporter, 

National    Bank    v.    County    of  269),  173 

Yankton    (101    U.    S.,    129),  Spies,  Ex  parte  (123  U.  S., 

207  131),  188 

Neagle,  In  re  (135  U.  S.,  1),  Stearns  v.  Minnesota  (179 

106  U.  S.,  223),  286 

New    Hampshire    v.    Louisiana  Strader  v.  Graham  (10  How., 

(108  U.   S.,   76),   172,   289  82),  264 

XV 


CASES   CITED 


Strauder  v.  West  Virginia  (100 

U.  S.,  303),  184 
Streitwolf  v.  Streitwolf   (181 

U.  S.,  179),  276 
Sturges  V.  Crowninshield  (4 

Wh.,  122),  137 

Tennessee  v.  Davis   (100  U.  S., 

257),  104 
Texas  v.  White  (7  Wall.,  700), 

93 
Tindal  v.  Wesley  (167  U.  S., 

204),  175 
Tinsley  v.  Anderson  (171  IT.  S., 

101),  107 

Union  Pacific  Ey.  v.  Peniston 

(18  Wall.,  5),  127 
United  States  v.  Arjona  (120 

U.  S.,  479),  109,  149 
United  States  v.  Fisher   (2  Cr., 

358),  40,  142 
United  States  v.  Huckabee   (16 

Wall.,  414),  194 
United  States  v.  Kagama   (118 

U.  S.,  375),  254 
United  States  v.  Lee  (106 

U.  S.,  196),  174 
United  States  v.  North  Caro- 
lina (136  U.  S.,  211),  290 


United  States  v.  Peters  (5  Cr., 

115),  41 
United  States  v.  Texas  (143 

U.  S.,  621),  290 
United  States  v.  Wong  Kim 

Ark  (169  U.  S.,  649),  248 

Veazie  Bank  v.  Fenno  (8  Wall., 

533),  129,  143 
Virginia,  Ex  parte  (100  U.  S., 

339),  183 
Virginia  v.  Tennessee  (148 

U.  S.,  503),  285 

Weber   v.    Harbor   Commission- 
ers (18  Wall.,  57),  264 

Weston  V.  Charleston   (2  Pet., 
449),  52,  126 

Williams  v.  Bruffy  (96  U.  S., 
176),  83 

Wisconsin  v.  Pelican  Insurance 
Co.  (127  U.  S.,  265),  275 

Worcester  v.  Georgia  (6  Pet., 
515),  251 

Yarborough,  Ex  parte  (110 
U.  S.,  651),  168 


X\'l 


THE  AMERICAN 
CONSTITUTIONAL  SYSTEM 


THE  AMERICAN 
CONSTITUTIONAL  SYSTEM 

CHAPTER  I 

THE   NATURE   OB^   THE   " FEDERAL"   STATE  ^ 

The  Definition  of  a  State.  In  its  form  of  governmen- 
tal organization  the  American  State  represents  a  very- 
complex  political  type.  For  this  reason,  in  order  to 
determine  satisfactorily  its  exact  legal  character  it  will 
be  necessary  first  to  consider  the  essential  attributes 
of  a  State  in  the  abstract. 

An  aggregate  of  men  living  together  in  a  single 
community,  and  united  by  mutual  interests  and  rela- 
tionships, we  term  a  Society.  When  there  is  created 
a  supreme  authority  to  which  all  the  individuals  of 
this  society  yield  a  general  obedience,  a  State  is  said 
to  exist.  The  social  body  becomes,  in  other  words,  a 
body  politic.  The  instrumentalities  through  which 
this  superior  authority  formulates  its  will  and  secures 
its  enforcement  is  termed  a  Government ;  the  com- 
mands it  issues  are  designated  Laws ;  the  persons  that 

1  In  this  chapter  the  author  has  drawn  liberally  from  an  earlier 
work  entitled  "  The  Nature  of  the  State :  A  Study  in  Political 
Philosophy." 

3 


THE   AMERICAN   CONSTITUTIONAL  SYSTEM 

administer  them,  public  officials,  or,  collectively,  a 
Magistracy;  the  whole  body  of  individuals,  viewed  as 
a  political  unit,  is  called  a  People;  and,  finally,  the 
aggregate  of  rules  or  maxims,  whether  written  or  un- 
written, that  define  the  scope  and  fix  the  manner  of 
exercise  of  the  powers  of  the  State,  is  known  as  the 
Constitution.  The  State  itself,  then,  is  neither  the 
People,  the  Government,  the  Magistracy,  nor  the  Con- 
stitution. Nor  is  it,  indeed,  the  territory  over  which 
its  authority  extends.  It  is  the  given  community  of 
individuals  viewed  in  a  certain  aspect— namely,  as  a 
political  unity. 

//  The  one  characteristic  that  is  essential  to  the  State, 
and  serves  to  distinguish  it  in  toto  genere  from  all 
other  human  associations,  is  its  possession  of  political 
sovereignty.  By  political  sovereignty  is  meant,  on 
the  one  hand,  complete  freedom  from  the  legal  con- 
trol of  any  other  power  whatsoever,  and,  on  the  other 
hand,  absolute  and  exclusive  control  over  the  legal 
rights  and  obligations  of  its  citizens,  individually  con- 
sidered or  grouped  into  larger  or  smaller  associations. 
The  State  is  thus  supreme  not  only  as  giving  the  ul- 
timate validity  to  all  laws,  but  as  itself  determining 

.y  the  scope  of  its  own  legal  powers  and  the  manner  of 

\  their  exercise. 

In  every  politically  organized  community  that  is 
entitled  to  be  termed  a  State,  there  must  exist,  then, 
an  authority  to  which,  from  the  legal  standpoint,  all 
interests  are  poteyitially  subject.  In  the  entire  body 
of  laws  of  a  State  are  summed  up  the  powers  of  that 
State  as  actually  exercised.  In  the  constitutional 
laws  are  declared  the  powers  legally  exercisable  by 

4 


THE   NATURE   OF   THE    "FEDERAL"   STATE 

the  ordinary  governmental  organs.  Thus  at  any  one 
time  the  domain  of  the  legal  and  political  liberties  of 
the  individual  is  simply  that  which  neither  public 
officials  nor  private  persons  may  legally  enter.  From 
possible  control  by  the  State,  however,  through  the 
enactment  of  new  constitutional  or  statutory  laws, 
these  liberties  are  not  and  cannot  be  removed.  Pro- 
fessor Burgess  puts  this  very  clearly  when  he  says: 
"The  individual  is  defended  in  this  sphere  against  the 
government  by  the  power  that  makes  and  maintains 
and  can  destroy  the  government;  and  by  the  same 
power,  through  the  government,  against  encroach- 
ments from  any  other  quarter.  Against  that  power 
itself,  however,  he  has  no  defence."^ 

In  the  eyes  of  political  theory  the  State  is  a  legal 
person.  It  has  its  rights  and  duties  and  possesses  a 
supreme  will  which  it  expresses  through  its  law-mak- 
ing organs  in  authoritative  commands.  Sovereignty, 
as  thus  expressing  the  State's  supreme  will,  is  neces- 
sarily a  unity  and  indivisible.  That  there  cannot  be 
in  the  same  being  two  wills,  each  supreme,  is  obvious. 
But  though  the  sovereign  will  of  the  State  may  not  be 
divided,  it  maj^  find  expression  through  several  leg- 
islative mouthpieces,  and  the  execution  of  its  com- 
mands may  be  delegated  to  a  variety  of  governmental 
organs.  Theoretically,  indeed,  the  State  may  go  to 
any  extent  in  the  delegation  of  exercise  of  its  powers 
not  only  to  governmental  organs  of  its  own  creation, 
but  even  to  those  of  other  States.  Thus  a  given  State 
may,  in  fact,  retain  under  its  own  immediate  direc- 
tion only  a  most  meager  complement  of  activities,  and 
1  "Political  Science  and  Constitutional  Law,"  I,  176. 

5 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

yet  preserve  unimpaired  its  sovereignty ;  for  in  such  a 
case  the  public  bodies  or  States  to  which  the  exercise 
of  the  powers  has  been  granted,  act  as  the  agents  of 
the  State  in  question,  and  this  State  still  possesses  the 
legal,  if  not  the  actual,  power  of  again  drawing  to 
itself  the  exercise  of  the  powers  it  has  delegated. 
Thus  mother-countries  may  concede  to  colonies  the 
most  complete  autonomy  of  government,  and  reserve 
to  themselves  a  control  of  so  slight  and  negative  a 
character  as  to  make  its  exercise  a  rare  occurrence; 
yet,  so  long  as  such  control  exists,  the  sovereignty  of 
the  mother-country  is  not  released,  and  such  colony  is 
therefore  to  be  considered  as  possessing  no  indepen- 
dent political  powers.  Again,  as  we  shall  later  see,  in 
the  so-called  Confederate  State,  the  member  Common- 
wealths may  yield  to  the  Central  Government  the 
exercise  of  their  most  important  powers  and  yet  re- 
tain their  sovereignty;  and,  on  the  other  hand,  a 
national  Federal  State  may,  without  destroying  its 
sovereignty,  yield  to  particular  territorial  authorities 
an  extent  of  power  sufficient  to  endow  them,  appar- 
ently, with  almost  all  the  characteristics  of  indepen- 
dent bodies  politic. 

A  State  cannot  be  Created  by  an  Agreement  between 
States.  A  State  owes  its  existence  to  the  fact  that, 
in  the  individuals  over  whom  its  authority  extends, 
there  is  a  sentiment  of  unity  sufficiently  strong  to  lead 
them  to  surrender  themselves  to  the  control  of  a  single 
political  power  for  the  sake  of  realizing  the  desires 
to  which  such  a  sentiment  gives  rise.  In  other  words, 
this  subjective  condition  first  comes  into  being,  and, 

6 


THE   NATURE   OF   THE   "FEDERAL"   STATE 


when  sufficiently  powerful,  finds  objective  manifesta- 
tion in  the  creation  of  a  political  organization. 

This  being  the  manner  in  which  a  State  comes  into 
being,  it  follows  that  it  is  improper,  in  any  instance, 
to  ascribe  to  it  a  juristic  or  conventional  origin.  A 
State  is  not  created  by  the  formal  adoption  of  a  writ- 
ten Constitution.  The  acceptance  by  a  People  of  such 
an  instrument  is  necessarily  the  political  act  of  a  com- 
munity already  transformed  into  a  body  politic,  and 
its  provisions  derive  their  force  as  law  from  that  fact. 
In  fine,  the  Constitution  is  but  the  law  which  defi- 
nitely determines  the  organs  through  which  the  State, 
already  in  existence,  is  henceforth  to  exercise  its  pow- 
ers. That  the  adoption  of  a  formal  instrument  of 
government  is  not  a  politically  creative  act  is  shown 
by  the  fact  that  such  a  Constitution  is  by  no  means 
essential  to  the  existence  of  a  State.  Written  Consti- 
tutions are,  indeed,  of  comparatively  recent  origin, 
and  their  raison  d'etre  goes  no  deeper  than  political 
expediency. 

Another  conclusion  following  from  the  fact  that  a 
formal  or  juristic  origin  cannot  be  ascribed  a  State, 
is  that  no  State  can  obtain  its  sovereignty  by  a  simple 
transfer  of  authority  from  other  States.  A  new  State 
can  take  its  origin  only  after  the  entire  withdrawal  of 
a  People  from  the  civic  bonds  in  which  they  have 
before  been  living.  Not  until  the  old  State  (or  States) 
has  (or  have)  been  destroyed,  peaceably  or  by  force, 
can  the  new  State  take  its  rise,  for  a  People  cannot 
live  under  two  sovereign  powers  at  the  same  time.  In 
other  words,  however  peaceably  the  transition  may  be 
effected,  the   erection  of  a  new  sovereignty   over   a 

7 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

People  already  politically  organized,  is  necessarily 
an  illegal,  revolutionary  act  when  viewed  from  the 
standpoint  of  the  old  State.  It  may,  indeed,  be  the 
case  that  in  adopting  the  new  Constitution  the  gov- 
ernmental machinery  of  the  old  State  is  employed; 
but,  in  such  a  case,  those  governmental  organs,  when 
so  utilized,  are  to  be  conceived  as  no  longer  the  agen- 
cies of  the  old  State,  but  as  implements  employed  by 
the  new  body  politic  for  the  execution  of  its  own  legal 
will. 

In  fine,  then,  it  must  be  held  that,  though  an  exist- 
ing State,  so  long  as  it  acts  through  the  forms  pre- 
scribed for  constitutional  amendment,  may  wholly 
change  the  character  of  its  governmental  organization, 
or  may  delegate  the  exercise  of  its  most  important 
powers,  it  cannot  by  its  own  act  create  a  new  sov- 
ereignty,^ 

The  Nature  of  a  Federal  State.  Applying  the  fore- 
going conclusions  to  the  apparent  creation  of  a  new 
Federal  State  by  the  union  of  a  number  of  States,  we 
are  necessarily  led  to  hold  that  though  the  birth  of 
the  new  sovereignty  is  practically  synchronous  with 
the  adoption  of  the  written  articles  of  union,  it  cannot 
be  said  that  such  Federal  State  owes  its  creation  to 
that  act.  If  it  be  admitted  that,  as  a  matter  of  fact, 
a  single  sovereign  State  has  come  into  being,  its  con- 

^  The  author  realizes  that  this  fundamental  principle  of  politi- 
cal theory  is  by  no  means  adequately  treated  in  the  foregoing 
paragraphs.  Eequirements  of  space  compel  him,  however,  to 
refer  the  unsatisfied  or  unconvinced  reader  to  his  "  Nature  of  the 
State,"  Chapters  vi  and  x,  where  the  topic  is  more  fully  discussed. 


THE   NATURE   OF   THE    "FEDERAL"   STATE 

ditioning  basis  must  be  considered  to  have  been  the 
feeling  of  national  unity  that  first  created  it  a  single 
political  body  out  of  a  number  of  sovereign  Peoples, 
and  then  gave  to  it  an  objective  organization.  The 
new  State  cannot,  in  other  words,  be  held  to  have 
derived  its  sovereignty  by  grant  from  the  formerly 
existing  sovereignties,  nor  can  such  sovereignties  be 
held  to  continue  to  exist  after  the  new  national  sov- 
ereignty becomes  a  fact. 

We  are  thus  irresistibly  led  to  the  conclusions  that 
not  only  cannot  a  so-called  Federal  State  be  based 
upon  an  agreement  or  compact  between  preexistent 
States,  but  that  it  cannot  be  itself,  in  any  strict  sense, 
composed  of  constituent  States.  In  all  exactness,  the 
term  "Federal  State"  is  thus  an  improper  one.*  A 
federal  form  of  Government  we  may  have,  but  not  a 
Federal  State;  for  a  State  is  by  its  very  nature 
a  unity  in  that  its  essential  attribute,  its  sovereignty, 
is  necessarily  a  unity.  There  cannot  be,  therefore,  any 
such  thing  as  a  State  composed  of  States.  Strictly 
speaking,  therefore,  the  only  correct  manner  in  which 
the  term  "Federal  State"  may  be  employed  is  to 
designate  a  State  in  which  a  very  considerable  degree 
of  administrative  autonomy  is  given  to  the  several  dis- 
tricts into  which  the  State 's  territory  is  divided.  Con- 
versely, we  must  hold  that  in  all  composite  political 
organizations  in  which  the  individual  members  still 
retain  their  sovereignty,  and  therefore  continue  to 
exist  as  States,  no  National  State  is  created.    A  Cen- 

1  Though  thus  technically  incorrect,  the  author  has  felt  him- 
self constrained,  by  general  usage,  at  times  to  employ  the  term 
"  Federal  State." 

9 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tral  Government  with  very  considerable  powers  may 
indeed  exist,  but  only  as  the  common  agent  of  the 
several  associated  States,  not  as  the  organ  of  a  distinct 
central  sovereignty.  Furthermore,  the  written  articles 
of  union,  if  such  there  be,  cannot  be  regarded  as  a  law 
or  Constitution,  but  only  as  an  international  compact 
or  treaty. 

The  foregoing  analysis  of  the  nature  of  sovereignty 
and  the  State  enables  us  to  say  that  the  distinction  be- 
tween a  National  State  with  a  federal  form  of  gov- 
ernment and  a  Confederacy  of  sovereign  States  is  not 
based  upon  the  quantum  of  powers,  the  exercise  of 
which  is  vested  in  the  Central  Government ;  nor,  neces- 
sarily, upon  whether  the  commands  emanating  from 
the  central  legislature  operate  directly  upon  individ- 
uals or  upon  the  individual  Commonwealths;  nor, 
finally,  upon  the  difference  between  a  Central  Govern- 
ment with  enumerated  and  one  with  unenumerated 
powers.'X  The  one  absolute  and  finally  determining 
criterion  is :  What  authority  has,  in  _the  la^t  instance, 
the  legal  power  of  fixing  its_own  legal_competence, 
and,  as  a  result,  that  of  jt^he  others ?^ 

In~the  sovereign  State  of  the  federal  governmental 
form,  the  legal  right  of  secession  on  the  part  of  the 
individual  Commonwealths  is  of  course  excluded. 
From  the  strictly  juristic  standpoint,  the  Common- 
wealths derive  their  existence  from  the  will  of  the 
national  State.  They  have,  therefore,  no  control  over 
their  own  political  status. 

The  doctrine  of  nullification,  which  concedes  to  the 
Commonwealth  members  of  a  federal  union,  individu- 
ally or  acting  in  concert,  a  right  to  refuse  obedience 

10 


THE   NATURE   OF   THE   "FEDERAL"   STATE 


to,  and  prevent  the  enforcement  within  their  respec- 
tive limits  of,  such  federal  laws  as  to  them  seem 
unwarranted  by  the  articles  of  union,  is  also  clearly 
inapplicable  in  a  true  federal  State.  Even  in  a  Con- 
federacy of  sovereign  States  the  right  to  "nullify" 
general  laws  cannot  be  spoken  of  as  a  legal  right. 
Each  member  of  such  a  union  being  completely  sov- 
ereign, may  govern  its  action  by  its  own  will,  and 
no  other  member  may  legally  say  nay.  It  is  hardly 
conceivable  that  the  assertion  of  such  a  power  on  the 
part  of  a  particular  confederated  State  will  not  lead 
to  disruption  of  the  union.  For  it  can  scarcely  be 
imagined  that  the  other  members  will  consent  to  the 
avoidance  by  such  State  of  the  execution  of  a  part  of 
the  general  law,  while  they  hold  themselves  bound  to 
it.  Such  a  condition  of  affairs  would,  in  fact,  result 
ipso  facto  in  a  destruction  of  the  union  to  that  extent, 
the  sole  end  of  the  confederation  being  to  secure  a 
concert  of  action  in  matters  of  general  interest.  It 
would,  indeed,  be  a  just  casus  helli  against  the  State 
so  refusing  obedience  to  the  agreement  in  which  it 
bound  itself  to  common  action.  Jefferson,  the  author 
of  the  Kentucky  Resolutions,  himself  asserted  the  pro- 
priety of  a  confederate  government  coercing  a  State 
when  he  wrote  to  Cartwright  advising  the  Congress 
of  the  old  Confederacy  to  send  a  frigate  and  compel 
a  State  to  pay  its  quota  of  taxes ;  and  in  general  those 
who  in  1861  asserted  that  secession  on  the  part  of  the 
individual  States  violated  no  legal  obligation  ex- 
pressly repudiated  the  idea  that  States  might  refuse 
obedience  to  such  federal  laws  as  they  objected  to  and 
still  remain  in  the  Union. 

11 


CHAPTER  II 

THE   NATURE   OF   THE   AMERICAN    STATE 

We  are  now  in  a  position  to  consider  the  validity  of 
the  various  views  that  have  been  held  regarding  the 
nature  of  the  American  State. 

In  the  controversies  which  have  been  had  as  to  the 
nature  of  our  Union,  the  States'  Rights  school  have 
held  a  single  and  logical  theory,  according  to  which 
it  has  been  declared  that  the  Constitution  is,  and  was 
intended  to  be,  the  creation  in  1789  of  the  several 
States  acting  as  individual  and  sovereign  political  en- 
tities. Granting  this  premise,  the  conclusions  which 
have  been  drawn  from  it  as  to  the  confederate  nature 
of  the  Union  and  the  legal  right  of  secession  have  fol- 
lowed as  logical  and  necessary  consequences.  All 
agreements  between  sovereign  States  necessarily  par- 
taking of  a  contractual  character,  a  Constitution  cre- 
ated by  the  union  of  the  wills  of  several  States  cannot 
be  other  than  of  a  non-legal  or  conventional  nature. 
The  States,  therefore,  which  are  united  under  it,  it 
has  been  asserted  by  members  of  this  school,  are 
bound  to  abide  by  its  provisions  or  to  continue  under 
it,  only  by  practical  or  moral  considerations.  They 
are  not,  it  has  been  declared,  subject  to  it  as  to  a 
legal  superior,  for  that  would  be  to  make  the  creature 
superior  to  its  creators. 

12 


THE   NATURE   OF   THE   AMERICAN   STATE 

To  meet  this  argument,  the  advocates  of  national 
supremacy  in  this  country  have  been  led  to  propound 
a  variety  of  theories  and  statements  of  fact.  By  some 
it  has  been  alleged  that,  even  if  it  be  admitted  that  at 
the  time  of  the  adoption  of  the  Constitution  the 
States  were  severally  sovereign,  and  were,  in  fact,  the 
parties  by  which  that  instrument  was  established,  still 
the  record  which  we  have  of  the  intentions  of  those 
who  drafted  it,  and  of  those  who  were  influential  in 
its  ratification,  reinforced  by  a  rational  interpretation 
of  its  own  words,  demonstrates  that  the  States  in- 
tended to,  and  actually  did,  in  that  agreement,  sur- 
render up  and  forever  quit-claim  every  right  or  title 
to  future  sovereignty;  which  sovereignty  was  hence- 
forth to  be  vested  in  the  government  and  State  therein 
provided  for.  This,  to  our  surprise,  is  substantially 
the  position  assumed  by  one  of  the  latest  commentators 
upon  our  constitutional  law,  Mr.  Roger  Foster.^ 

The  illogical  character  of  this  theory  is  sufficiently 
obvious.  In  the  first  place,  it  assumes  what  we  have 
seen  to  be  an  impossibility,  the  voluntary  subjection 
of  a  State  to  an  absolute  legal  control  of  another 
power  by  an  agreement  between  itself  and  other  sov- 
ereign powers.  In  the  second  place,  it  considers  the 
adoption  of  a  written  Constitution  as  creative  of  a 
State,  whereas,  in  fact,  as  we  have  learned,  a  Consti- 
tution is  necessarily  the  creation  of  a  preexistent 
State,  and  is  merely  the  instrument  wherein  that  State 
provides  for  its  governmental  organization  and  for  the 
distribution  of  its  political  power. 

1 "  Commentaries  on  the  Constitution  of  the  United  States  " 
(1895),  Vol.  I,  §  15. 

13 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

A  second  and  more  logical  manner  in  which  the  po- 
sition of  the  States'  Rights  school  has  been  met  has 
been  by  the  assertion,  either  that  the  individual  mem- 
bers of  our  Union  never  were  severally  sovereign  and 
independent  States,  or  that,  if  they  ever  were,  they 
were  not  such  in  the  years  1787-89,  or  that  if  they 
were  then  sovereign,  it  was  not  they,  but  the  people 
of  all  the  States  as  a  single  sovereign  aggregate,  who 
established  our  present  Federal  State. 

That  the  States  never  were  severally  sovereign  and 
independent  bodies  politic  has  been  widely  asserted 
by  public  men,  as  well  as  confidently  stated  by  such 
constitutional-law  writers  as  Story,  Pomeroy,  Von 
Hoist,  and  Lieber,  and,  though  less  explicitly,  by 
Cooley  and  Hare.  Finally,  in  the  comparatively  re- 
cent work  of  Professor  Burgess  on  "Political  Science 
and  Constitutional  Law,"  we  find  taken  substantially 
the  same  position.  On  page  100  of  the  first  volume 
he  says  of  the  First  Continental  Congress  that  it  "was 
the  first  organization  of  the  American  State. "  "  From 
the  first  moment  of  its  existence, ' '  he  continues,  ' '  there 
was  something  more  upon  this  side  of  the  Atlantic 
than  thirteen  local  governments.  There  was  a  sover- 
eignty, a  State,  not  in  idea  simply  or  upon  paper,  but 
in  fact  and  organization." 

The  difficulty  experienced  by  all  these  writers  who 
maintain  the  sovereignty  of  the  National  Government 
from  the  time  of  the  severance  of  our  colonial  connec- 
tion with  England,  is  to  explain  the  status  of  the 
Union  during  the  period  when  the  Articles  of  Con- 
federation were  in  force.  The  non-sovereign  character 
of  the  Central  Government  established  by  these  Arti- 

14 


THE  NATURE  OF  THE  AMERICAN  STATE 

cles  is  practically  beyond  dispute.  It  is  not  only  ap- 
parent by  their  phraseology,  but  was  so  conclusively 
demonstrated  by  the  logic  of  events,  as  to  admit  of 
no  contradiction.  This  period  is  therefore  usually 
spoken  of,  by  those  who  hold  the  theory  we  have  just 
been  considering,  as  one  during  which  the  individual 
States  had  ' '  usurped ' '  the  legitimate  national  sov- 
ereignty, but  that,  nevertheless,  underneath,  as  a  sub- 
merged but  yet  existent  political  entity,  the  National 
State  still  existed.  Thus  says  Pomeroy:  "However 
much  the  States  may  have  exercised  'usurped'  attri- 
butes of  sovereignty  during  the  unhappy  confedera- 
tion ;  however  much  the  conception  of  one  people  act- 
ing as  a  unit  may  have  been  forgotten  or  abandoned 
amid  the  jealousies  and  destructive  rivalries  of  the 
commonwealths  claiming  substantial  independence; 
the  people  had  now  [1789]  arisen,  reasserted  the 
original  idea,  repudiated  the  assumption  of  local  su- 
premacy and  uttered  their  organic  will  in  terms  which 
we  hope  will  have  a  meaning  and  power  to  the  end  of 
time."  Von  Hoist  says  that  the  Continental  Con- 
gress "exhorted  the  legislatures,  by  an  act  of  public 
usurpation  against  the  legal  consequences  of  historical 
facts,  to  transform  the  Union  into  a  league  of  States, 
and  the  legislatures  recklessly  responded  to  this  de- 
mand." Professor  Burgess  maintains  that  during 
this  confederate  period  "the  American  State  ceased 
to  exist  in  objective  organization.  It  returned  to  its 
subjective  condition  merely,  as  idea  in  the  conscious- 
ness of  the  people;"  that  "from  the  standpoint  of 
political  science,  what  existed  now,  as  objective  insti- 
tutions, was  a  central  government  and  thirteen  local 

15 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

governments.  From  the  standpoint  of  public  law,  on 
the  other  hand,  what  existed  as  objective  institutions, 
was  thirteen  States,  thirteen  local  governments,  and 
one  central  government.  This  was  a  perfectly  un- 
bearable condition  of  things  in  theory,  and  was  bound 
to  become  so  in  fact.  .  .  .  There  was  here  simply  a 
struggle  between  the  central  government  and  the 
local  governments  about  the  distribution  of  govern- 
mental powers,  which  could  only  be  settled  by  the 
word  of  the  sovereign— the  State.  The  State,  how- 
ever, was  not  organized  in  the  confederate  constitu- 
tion; i.  e.,  it  could  not  legally  speak  the  sovereign 
command.  .  .  .  The  State  had  no  legal  organization 
in  the  system." 

It  must  be  apparent  that  such  reasoning  as  is  con- 
tained in  the  above  quotations  is  a  playing  fast  and 
loose  with  political  theory,  and  a  vain  attempt  to  up- 
hold an  untenable  position.  How  can  we  speak  of  a 
government  as  a  usurping  one  which  had  an  ad- 
mitedly  de  facto  position,  and  was  voluntarily  es- 
tablished and  maintained  by  the  people  organized 
under  it?  The  condition  of  atifairs  under  the  Articles 
was  undoubtedly  an  unsatisfactory  one,  but  there  was 
certainly  no  question  of  usurpation.  But  aside  from 
the  question  of  fact,  how  can  Professor  Burgess  con- 
ceive of  a  State  as  ceasing  to  exist  objectively  and 
still  maintaining  a  subjective  existence,  when  the  two 
are  necessarily  but  different  aspects  of  the  same  thing, 
which  can  be  disassociated  in  thought  only  ?  Or,  aside 
from  this  inherent  impossibility,  how  can  he  conceive 
of  such  a  state  of  affairs,  when  the  unequivocal,  vol- 
untary, objective  act  of  the  people  in  adopting  and 

16 


THE  NATURE  OF  THE  AMERICAN  STATE 

maintaining  the  Articles  affords  conclusive  evidence 
that  the  subjective  sentiment  of  national  unity  had 
ceased  to  exist,  if,  indeed,  up  to  that  time,  it  had  ever 
existed  ? 

We  have  usually  been  taught  that  the  adoption  of 
the  Articles  was  a  step— albeit  an  insufficient  step— 
toward  union ;  yet  this  school  of  thinkers  which  we 
have  been  considering  would  have  us  believe  that  the 
adoption  of  that  instrument  was  a  step  backward,— 
the  objective  destruction  of  a  union  which  had  pre- 
existed. 

-^As  to  that  part  of  the  argument  of  the  writers  we 
have   just   been   considering   which    denies   that    the 
effect  of  the  separation  of  the  thirteen  colonies  from 
Great  Britain  was  to  transform  them  into  thirteen 
severally  sovereign  States,  it^may_siinply  be  said_that 
the  testimony  of  history  is  overwhelmingly  to  the  ef- 
fect that,  with_practical  unammijty,  the  people  of  those 
times  held  the^  contrary  view,  and  that  a  reasonable 
interpretation   of  the   facts  _suj3ports__them_in_tlieir 
opinion.  ^Concert  of  action  there  of  course  was,  but 
cooperation  did  not  create  constitutional  union  any 
more  than  did  the  concert  of  action  of  the  Allies  in 
the  Napoleonic  wars  operate  to  fuse  into  one  political 
sovereignty  the  participating  States.     So  evident,  in-| 
deed,  was  the  original  sovereignty  of  the  several  thir-i 
teen  States  after  1776,  that  it  was  conceded  by  Web-. 
ster,  Madison,  and  Hamilton,  and  was,  in  fact,  not' 
once  questioned,  so  far  as  we  know,  for  nearly  half  a 
century  after  our  present  government  was  established. j 

However,  the  maintenance  of  the  assertion  that  the 
States  were  sovereign  prior  to  the  adoption  of  the 
2  17 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

Articles  of  Confederation,  is,  after  all,  of  no  great 
significance,  for  if  it  be  true  that  the  States  were  in- 
dividually sovereign  between  1781  and  1789,  then, 
whether  they  became  such  in  an  illegal  and  usurping 
manner  or  not,  the  fact  would  still  be  that,  at  the  time 
of  the  adoption  of  our  present  Constitution,  they  were 
the  only  bodies  politic  vested  with  the  sovereign 
power.  The  fact,  therefore,  even  if  it  could  rightly 
be  alleged,  that  there  had  been  a  prior  sovereignty  of 
the  Nation,  would  have  only  a  moral  or  argumentative 
effect  in  justifying  the  right  of  the  people  to  act  as 
a  unit  in  1789,  and  as  demonstrating  that,  as  a  matter 
of  fact,  they  did  do  so. 

Granting  then  that  the  individual  States  were  sev- 
erally sovereign  in  1789,  how,  if  at  all,  is  the  national 
character  of  our  present  Constitution  to  be  main- 
tained? The  best-known  answer  to  this  question  is 
that  rendered  classic  in  the  speeches  of  Webster,  that, 
though  the  States  existed  in  1789  as  thirteen  sovereign 
bodies  politic,  and  though  the  Constitution  was  for- 
mally ratified  by  the  people  acting  through  conven- 
tions convened  for  that  purpose  in  and  by  each  of 
such  States,  yet  the  act  of  adopting  the  Constitution 
was,  after  all,  not  the  act  of  the  several  States,  but  of 
the  whole  people  united  into  a  political  unity  by  that 
subjective  feeling  of  nationality  which  is  the  ultimate 
foundation  of  every  sovereign  State.  In  other  words, 
this  theory  is  that  at  this  time  the  National  State  ex- 
isted subjectively  in  the  minds  of  the  people  and  was 
made  objectively  manifest  in  the  creation  of  a  Na- 
tional Government ;  and  that  existing  state  organs  and 
political  machinery  were  used  merely  for  convenience 

18 


THE   NATURE   OF  THE  AMERICAN  STATE 

for  the  realization  of  that  object.  This  view,  it  will 
be  seen,  differs  from  the  one  which  holds  that  the  in- 
dividual States  were  not  at  that  time  sovereign,  in 
that  it  makes  the  adoption  of  the  Constitution  a  revo- 
lutionary act  as  regards  the  then  de  facto  state  gov-, 
ernments. 

The  point  to  be  observed  in  regard  to  this  theory  is, 
that,  as  ordinarily  argued,  it  puts  the  controversy 
upon  a  plane  where  absolute  demonstration,  either  for 
or  against,  is  rendered  impossible.  The  allegation 
that,  though  the  people  ratified  in  state  conventions, 
they  yet  believed  themselves  to  be  acting  and  intended 
to  act  as  a  single  national  unit,  is  one  which  can  be 
proved  or  disproved  only  by  searching  the  minds  of 
the  people  of  that  time.  The  question  is  thus  made 
to  turn  upon  the  existence  or  non-existence  of  a  mental 
state,  a  subjective  condition  purely.  Now  the  only 
evidence  which,  in  general,  has  been  adduced  upon 
this  point  is  the  records  which  we  have  of  national- 
istic and  particularistic  expressions  of  the  statesmen 
of  the  time,  together  with  what  other  written  evidence 
may  be  produced  to  show  what  the  people  themselves 
thought  was  the  character  of  the  constitutive  act 
which  they  were  performing.  Had  there  but  been  a 
substantial  agreement  of  opinions  at  the  time,  or  had 
the  people  been  skilled  in  logical  and  legal  distinctions 
in  political  philosophy,  and  gifted  with  a  foresight  as 
to  the  necessity  of  rendering  the  character  of  their 
acts  perfectly  explicit,  and,  lastly,  had  their  inten- 
tions, as  finally  contained  in  the  instrument  of  govern- 
ment which  was  adopted,  been  so  unequivocally  stated 
as  to  admit  of  but  one  construction,  then,  and  only 

19 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

then,  such  evidence  might  possibly  be  so  exhaustively 

collected  as  to  afford  ground  for  a  satisfactory,  if  not 

absolutely  certain,  decision  in  the  matter.     But  it  is 

scarcely  necessary  to  say  that  such  conditions  did  not 

*  exist.     So  long,  therefore,  as  the  argument  is  con- 

'  ducted  along  these  lines,  both  sides  are  abundantly 

fable  to  cite  facts  as  well  as  expressions  of  opinion  fa- 

Ivorable  to  their  views,  without  either  of  them  being 

.  ever  able  conclusively  to  satisfy  either  their  opponents 

'or  the  impartial  student. 

From  some  sources  the  view  has  been  advanced  that 
the  framers  of  our  Constitution  were  well  aware  of 
the  logical  dilemma  that,  in  any  federal  State,  the 
sovereignty  when  traced  to  its  final  source  is  to  be 
found  in  its  entirety  either  in  the  central  power  or 
in  the  constituent  States,  but  that  they  purposely 
avoided  giving  an  explicit  statement  in  the  instru- 
ment which  they  drafted  as  to  which  horn  of  this 
dilemma  they  accepted.  This  is  a  view  taken  by  Pro- 
fessor A.  W.  Small  in  his  essay  entitled  "The  Begin- 
nings of  American  Nationality,"  in  which  he  says, 
"The  people  of  the  United  States  simply  dodged  the 
responsibility  of  formulating  their  will  upon  the  dis- 
tinct subject  of  National  sovereignty  until  the  legisla- 
tion of  the  sword  began  in  1861."  This  is  also  the 
view  of  the  late  President  Francis  A.  Walker,  as 
expressed  in  an  article  entitled  "The  Growth  of 
American  Nationality,"  published  in  1895.  In  this 
he  writes,  "The  issue  was  one  which,  if  not  pur- 
posely made  doubtful,  was  purposely  left  doubtful, 
because  any  attempt  to  force  the  issue  at  that  time 
would   have   meant  nothing   more   or   less   than   the 

20 


THE   NATURE   OF  THE  AMERICAN  STATE 

immediate   and   complete   failure   of   any   scheme   of 
Union." 

This  theory  is  thus,  it  will  be  observed,  a  frank  non 
possumus,  as  to  whether  or  not  a  National  State  did 
actually  exist  or  was  created  in  1789. 

Attractive  as  is  this  theory  in  its  solution,  or  rather 
avoidance,  of  the  difficulties  inherent  in  the  analysis 
of  the  constituent  act  of  1789,  it  is,  unfortunately 
almost,  if  not  quite,  unsupported  by  historical  evi- 
dence. Surely  if  the  real  nature  and  importance  of 
the  distinction  between  a  Confederation  of  States  and 
a  single,  absolutely  sovereign  National  State  had  been 
clearly  perceived  by  those  taking  the  leading  part  in 
the  framing  of  the  new  federal  instrument  of  govern- 
ment, and  if,  with  this  distinction  in  mind,  a  con- 
scious, deliberate  attempt  was  made  to  leave  the  mat- 
ter unsettled,  some  one  of  them  would  have  avowed 
it,  or  at  least  have  made  a  note  of  it  in  his  private 
writings.  That  there  may  have  been  a  few  prescient 
minds  that  saw  that  there  was  lacking  in  the  proposed 
Constitution  a  decisive  answer  to  the  question  as  to 
where  the  ultimate  sovereignty  in  the  United  States 
was  henceforth  to  lie,  we  may  admit.  But  that  this 
fact  was  generally  recognized  by  the  leaders  of  the 
people  in  the  constitutional  and  state-ratifying  con- 
ventions, and  that  there  was  an  agreement  between 
these  leaders  to  remain  silent  upon  this  point,  is,  con- 
sidering the  bitterness  of  the  debates  preceding  the 
final  ratification  of  the  Constitution,  practically  in- 
conceivable. 

Some  more  satisfactory  answer  to  this  all-important 
question  than  the  one  just  considered  is,  therefore, 

21 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

needed.     This  more  satisfactory  answer   is   the   fol- 
lowing : 

It  has  been  generally  held  that  if  it  be  admitted 
that  the  States  were  sovereign  in  1789,  and  that  the 
people  themselves  believed  the  Constitution  to  be,  and 
intended  that  it  should  be,  a  compact  between  the 
States,  then  a  Confederacy  must  be  conceded  to  have 
been  established,  and  secession,  consequently,  a  con- 
stitutional right.  We  do  not  believe  that  this  necessa- 
rily follows,  and  for  these  reasons.  It  clearly  ap- 
pears from  what  we  know  of  the  thought  of  the  period 
that  the  people  generally,  as  well  as  the  most  influ- 
ential of  the  public  men,  regarded  the  Constitution  as 
a  compact  between  the  States.  We  find  it  repeatedly 
so  stated  by  the  most  earnest  advocates  of  a  strong 
central  government,  both  at  the  time  of  the  adoption 
of  the  Constitution  and  during  the  first  years  which 
followed  its  ratification.  Thus,  to  give  a  single  in- 
stance, as  typical  of  many,  we  find  Madison  in  the 
thirty-ninth  number  of  the  "Federalist"  declaring 
that  "this  assent  and  ratification  is  to  be  given  by  the 
people  not  as  individuals  composing  one  entire  nation, 
but  as  composing  the  distinct  and  independent  States 
to  which  they  respectively  belong.  It  is  to  be  the 
assent  and  ratification  of  the  several  States,  derived 
from  the  supreme  authority  in  each  State, — the  au- 
thority of  the  people  themselves.  The  act,  therefore, 
establishing  the  constitution  will  not  be  a  national  but 
a  federal  act."  Indeed,  the  Constitution  itself  plainly 
enough  says  that  "the  ratification  of  the  conventions 
of  nine  States  shall  be  sufficient  for  the  establishment 
of  this  Constitution  between  the  States  so  ratifying 

22 


THE  NATURE  OF  THE  AMERICAN  STATE 


the  same."  More  unequivocal  language  than  this  it 
is  difficult  to  imagine.  In  the  light,  then,  of  this  ex- 
press statement  in  the  instrument  itself  and  of  numer- 
ous and  unrepudiated  contemporaneous  expressions 
to  the  same  effect,  the  fact  would  seem  to  be  incontes- 
table that  the  basis  of  the  new  National  State  was 
conceived  by  those  establishing  it  to  rest  upon  an 
agreement   between  the   several   ratifying   States. 

Notwithstanding,  however,  this  general  predication 
of  a  contractual  basis  for  the  new  Constitution,  there 
is  equally  positive  proof  that  the  people  of  the  time 
intended  to  establish,  and  believed  that  they  were  es- 
tablishing not  simply  a  central  governmental  power 
that  was  to  act  as  the  common  agent  in  certain  matters 
for  a  league  or  confederation  of  sovereign  States,  but 
a  National  State  under  which  no  right,  either  of  nulli- 
fication of  federal  law,  or  withdrawal  from  the  Union, 
was  to  be  reserved  to  or  by  the  States.  To  be  sure, 
these  two  views  are,  and  were,  logically  contradictory, 
and  had  the  people  of  that  time  been  political  logi- 
cians, they  would  not  have  been  able  to  accept  them 
both.  But  this  does  not  militate  against  the  fact  that, 
in  truth,  they  did  accept  them  both. 

As  is  well  known,  the  political  thought  of  that  time 
was  saturated  with,  and  completely  dominated  by, 
the  doctrines  of  natural  rights,  popular  sovereignty, 
and  the  legitimization  of  political  authority  by  mu- 
tual agreement  between  the  governed,  or  between  them 
and  their  rulers.  For  proof  of  the  universality  with 
which  these  views  were  held,  one  need  search  no  fur- 
ther than  the  preamble  and  bills  of  rights  of  the  state 
constitutions  of  that  time,  the  writings  of  men  like 

23 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Jefferson,  Madison,  Jay,  and  Tucker,  and  the  decisions 
of  the  courts,  including  the  early  opinions  of  the 
Supreme  Court  of-  the  United  States.  Throughout 
all  the  writings  of  the  period,  and  for  a  generation 
following,  where  not  explicitly  stated,  this  political 
philosophy  was  held  as  necessarily  implied. 
//  If,  then,  there  was  a  practical  consensus  of  opinion 
/that  a  public  will  could  be  created  by  a  union  of  in- 
dividual wills, — that  public  rights  could  be  based 
upon  a  surrender  of  personal  rights  of  individuals 
who  were  originally  severally  sovereign,  — if  this  were 
so,  what  could  be  more  natural  than  that  the  people 
should  believe  it  to  be  equally  possible  for  a  national 
sovereignty  to  be  created  through  the  mutual  agree- 
ment of  thirteen  severally  sovereign  political  person- 
alities? The  reasoning  which  supported  the  one  view 
would  be  equally  strong  to  sustain  the  other. 

There  is,  of  course,  not  the  space  here,  nor  is  this 
the  place,  to  detail  again  the  various  expressions  of 
opinion  which  go  to  prove  that  this  was  the  view  taken 
of  the  character  and  effect  of  the  act  by  which  the 
Constitution  was  adopted.  But  we  may  take  the  time 
to  point  out  what  are  the  two  strongest  proofs  that 
we  are  right  upon  this  point. 

In  the  first  place  as  evidencing  this,  there  is  the  fact 
that  there  was  a  very  general  agreement  in  opinion 
that  the  new  government  should  obtain  the  assent  of 
the  Peoples  of  the  States,  acting  in  their  original  sov- 
ereign capacity  in  conventions  convened  for  that  pur- 
pose. It  was  conceded  at  that  time  by  all,  or  almost 
all,  that  for  the  establishment  of  a  league  or  confed- 
eracy, such  as  had  been  created  by  the  Articles,  the 

24 


THE  NATURE   OF   THE  AJMERICAN  STATE 

existing  state  governments  were  fully  competent,  but 
that  when  it  came  to  the  establishment  of  a  Constitu- 
tion,—the  creation  of  a  new  political  sovereignty,— a 
legitimate  basis  could  only  be  found  in  the  popular 
sovereignty  upon  which  all  political  authority  was 
believed  ultimately  to  rest.  In  the  Constitutional 
Convention,  on  July  23,  Madison  said  that  "  he 
considered  the  difference  between  a  system  founded 
on  the  legislatures  only,  and  one  founded  on  the 
people,  to  be  the  true  difference  between  a  league 
or  treaty,  and  a  constitution."  Rufus  King  declared 
a  popular  ratification  to  be  the  surest  way  of  dis- 
pelling "all  doubts  and  disputes  concerning  the  le- 
gitimacy of  the  new  constitution."  In  other  words, 
it  was  argued,  that  if  this  popular  ratification  were  ob- 
tained, the  fact  that  the  new  Constitution  was  to  rest 
upon  the  assent  of  a  less  number  of  States  than  that 
provided  for  by  the  existing  Articles  of  Confedera- 
tion, would  not  be  material,  for  the  original  source 
of  all  political  legitimacy  would  have  been  appealed 
to  and  its  approval  obtained.  As  Marshall  said  in 
McCulloch  V.  Maryland,  "To  the  formation  of  a 
league  such  as  was  the  Confederacy,  the  state  sover- 
eignties were  clearly  competent.  But  when  'in  order 
to  form  a  more  perfect  union,'  it  was  deemed  neces- 
sary to  change  this  alliance  into  an  effective  govern- 
ment, possessing  great  and  sovereign  powers  and 
acting  directly  on  the  people,  the  necessity  of  refer- 
ring it  to  the  people,  and  of  deriving  its  powers 
directly  from  them,  was  felt  and  acknowledged  by 
all."  This,  then,  being  the  generally  accepted  theory 
of  that  time,  the  fact  that  such  a  popular  foundation 

25 


THE   AMERICAN   CONSTITUTIONAL    SYSTEM 

was  sought,  and  generally  conceded  to  be  necessary, 
for  the  new  Constitution,  is  in  itself  almost  conclusive 
proof  that  a  sovereign  National  State  was  intended 
to  be  created. 

In  further  verification,  however,  of  the  fact  of  an 
intended  nationality  is  the  negative  circumstance 
that  nowhere  in  the  debates  in  the  Federal  Conven- 
tion, nor  in  the  state-ratifying  conventions,  nor  in  the 
pamphlets  which  were  put  forth  on  both  sides  upon 
the  question  of  ratification,  did  there  occur  a  single 
assertion  of  the  right  of  secession.^  On  the  other 
hand,  the  opponents  of  the  proposed  Constitution  at- 
tacked it  as  providing  for  the  destruction  of  the  in- 
dividual States,  and  for  the  creation  of  a  consolidated 
government;  and  men  like  George  Mason,  Richard 
Henry  Lee,  and  Patrick  Henry  predicted  the  dire  op- 
pression of  the  Commonwealths  by  the  federal  power. 
George  Mason  in  the  Virginia  Convention  declared: 
"This   paper    [the    Constitution]    will    be   the   great 

1  In  its  ratification  of  the  constitution,  Virginia  declared  :  "Do, 
in  the  name  and  in  the  behalf  of  the  people  of  Virginia,  declare 
and  make  known,  that  the  powers  granted  under  the  constitution, 
being  derived  from  the  people  of  the  United  States,  may  be  as- 
sumed by  them  whensoever  the  same  shall  be  perverted  to  their 
injury  or  oppression."  New  York  in  her  ratification  declared : 
"  That  the  powers  of  government  may  be  reassumed  by  the  peo- 
ple whensoever  it  shall  become  necessary  to  their  happiness." 
Rhode  Island  declared:  "That  the  powers  of  government  may 
be  reassumed  by  the  people,  whensoever  it  shall  become  necessary 
to  their  happiness."  Some  writers,  e.  g.,  Tucker,  "  Const.  Law," 
p.  339,  interpret  these  declarations  as  reservations  of  a  legal  right 
of  secession  from  the  Union.  As  a  fact,  however,  it  is  clearly 
demonstrable  that  they  were  intended  simply  as  declarations  of 
the  moral  right  of  revolution  in  cases  of  oppression. 

26 


THE   NATURE   OF  THE  AMERICAN  STATE 

charter  of  America ;  it  will  be  paramount  to  every- 
thing. After  having  once  consented  to  it  we  cannot 
recede  from  it."  Richard  Henry  Lee,  in  his  letters 
written  over  the  signature  ''The  Federalist  Farmer," 
asserted:  ''It  is  to  be  observed  that  when  the  people 
shall  adopt  the  proposed  Constitution  it  will  be  their 
last  and  supreme  act.  It  will  be  accepted  not  by  the 
people  of  New  Hampshire,  Massachusetts,  etc.,  but 
by  the  people  of  the  United  States ;  and  wherever  this 
Constitution,  or  any  part  of  it,  shall  be  incompatible 
wdth  the  ancient  customs,  rights,  the  laws  or  the  con- 
stitutions heretofore  established  in  the  United  States, 
it  will  entirely  abolish  them  and  do  them  away." 
Surely  it  is  reasonable  to  believe  that,  had  it  been 
generally  held  that  under  the  proposed  Constitution 
a  legal  right  of  withdrawal  was  still  left  the  States, 
this  belief  would  have  been  declared  in  answer  to 
such  emphatic  utterances  as  these. 

Not  only,  however,  were  there  no  assertions  at  this 
time  of  a  right  of  secession,  but  there  were  specific 
declarations  to  the  contrary.  A  conspicuous  instance 
of  this  was  in  Madison's  reply  to  the  query  of  Ham- 
ilton as  to  the  propriety  of  "propositions  of  amend- 
ments upon  condition  that  if  they  are  not  adopted 
within  a  limited  time,  the  States  shall  be  at  liberty  to 
withdraw  from  the  Union."  Madison's  reply  w^as: 
"My  opinion  is  that  a  reservation  of  a  right  to  with- 
draw, if  amendments  be  not  decided  on  under  the 
form  of  the  Constitution  within  a  reasonable  time,  is 
a  conditional  ratification ;  that  it  does  not  make  New 
York  a  member  of  the  new  Union,  and  consequently 
that  she  could  not  be  received  on  that  plan.    Compacts 

27 


THE  AMERICAN   CONSTITUTIONAL  SYSTEM 

must  be  reciprocal— this  principle  could  not  in  such 
a  case  be  preserved.  The  Constitution  requires  an 
adoption  in  toto  and  forever.  It  has  been  so  adopted 
by  the  other  States.  An  adoption  for  a  limited  time 
would  be  as  ineffective  as  an  adoption  of  some  of  the 
articles  only.  In  short,  any  condition  whatever  must 
vitiate  the  ratification." 

This  letter  of  Madison's  was  read  to  the  New  York 
convention,  whereupon  that  convention  ratified  the 
Constitution  unconditionally.  The  contents  of  this 
letter  of  course  became  also  well  known  to  the  people 
of  the  other  States,  and,  so  far  as  we  know,  gave  rise 
to  no  protests,  such  as  surely  would  have  arisen  had 
the  doctrines  that  it  declared  been  contrary  to  those 
generally  held.^ 

In  connection  with  the  assertion  that  it  was  gener- 
ally agreed,  both  by  the  supporters  and  opponents  of 
the  new  Constitution,  that  a  National  State  was  to  be 
brought  into  being,  we  must  also  remember  that,  as 
appears  by  overwhelming  evidence,  the  men  of  those 
times  were  practically  unanimously  of  the  opinion 
that  it  was  perfectly  possible  to  create  a  genuine 
National  State  that  would,  within  its  own  limited 
sphere,  be  absolutely  and  truly  sovereign;  and,  at  the 

1  The  significant  fact  is  to  be  noticed  that  in  this  very  letter 
which  contains  this  emphatic  denial  of  this  reserved  right  of 
■withdrawal  in  the  State,  is  employed  a  phraseology  that  clearly 
indicates  the  presence  in  Madison's  mind  of  the  idea  that  the 
States  are  to  be  the  ratifying  parties  to  the  new  instrument  of 
government.  If  the  adoption  be  conditional  New  York  will  not 
become  "a  member  of  the  new  Union;"  "Compacts  must  be 
reciprocal;"  "It  has  been  so  adopted  by  the  other  States,"  are 
the  phrases  used. 

28 


THE   NATURE   OF  THE  AMERICAN  STATE 

same  time,  to  preserve  the  several  member  States  as 
true  States  which  would  be,  within  their  Mspective 
spheres,  equally  sovereign  and  independent^In  other 
words,  to  the  theorists  of  1789  there  seemed  no  diffi- 
culty whatever  in  a  divided  sovereignty,  and  there- 
fore, in  the  existence  of  a  sovereign  National  State 
composed  of  constituent  sovereign  States.^ 

We  must  believe  that  it  did  not  wholly  escape  the 
constitutional  fathers  that,  ultimately,  there  must  be 
some  single  source  of  the  political  authority  both  of 
the  National  State  and  of  its  member  States.  They 
deemed,  however,  this  logical  necessity  satisfied  by 
asserting  in  general  terms  that  all  right  to  political 
rule  is  derived  from  the  people,  without  clearly  stat- 
ing whether  by  the  people  they  meant  the  citizen 
bodies  of  the  thirteen  States,  severally  considered,  or 
the  whole  American  populus  conceived  as  a  single 
body  politic.y^hus,  instead  of  giving  any  real  answer 
to  the  question  as  to  thefina]_location__of  ^v^eignjj 
nTAmerTcarTlTey  merel.v_pushed_tliej)ro_bIem  one  step 
further  "bacirjn^^^there  lefr"it  as  undetermined  as 
befweT/This,  however,  was  not  a  conscious,  deliberate 
evasion  of  the  difficulty  as  Small  and  Walker  would 
have  us  believe.  It  was  a  clear  self-deception,— a  self- 
deception  from  which  Americans  were  very  slowly  re- 
leased, for  even  after  serious  conflicts  had  arisen 
between  the  Federal  Government  and  the  individual 
Commonwealths,  and  the  former  had  clearly  demon- 
strated its  paramountcy,  both  nationalists  and  par- 
ticularists  long  continued  to  speak  of  a  division  of 

1  For  the  evidence  as  to  the  generalness  with  which  this  view  was 
held,  see  Merriam's  "History  of  American  Theories,"  Chap.  vn. 

29 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

sovereignty  between  federal  and  state  governments. 
It  was  not,  indeed,  until  the  time  of  the  Calhoun- 
Hayne- Webster  debate  that  the  indivisibility  of  sov- 
ereignty was  definitely  put  forward.  Even  this,  how- 
ever, did  not  put  an  end  to  the  theory.  It  continued 
to  figure  in  our  political  thought  until  the  outbreak 
of  the  Civil  War,  when  it  received  its  last  unfortunate 
application  at  the  hands  of  Buchanan  when  he  as- 
serted that,  though  the  individual  States  had  not  the 
legal  right  of  secession,  the  National  Government  had 
not  the  constitutional  power  to  prevent  them  from 
doing  so. 

//  By  adopting  the  explanation  which  we  have  just 
given  of  the  motives  and  intentions  of  those  who 
framed  and  adopted  our  Constitution,  we  seem  to  be 
thrown  into  the  peculiar  position  of  maintaining  that 
the  people  desired  and  thought  that  they  were  oH- 
taining  a  result  that  we  now  know  to  have  been  a 
laical _inrp.ossibUity — namely,  the  creation  of  a  le- 
gally indissoluble  Union  by  an  agreement  between 
sovereign  States— one  in  which  not  simply  the  exer- 
cise of  sovereignty  but  the  power  itself  should  be 
divided  between  the  National  State  and  its  member 
Commonwealths^/^^hat  then,  as  a  matter  of  fact,  are 
we  to  say  was  the  nature  of  the  actual  product?  If 
this  w^as  simply  a  question  as  to  which  should  deter- 
mine, the  intention,  or  the  means  employed,  we  should 
not  hesitate  to  say  that  the  intention  should  be  con- 
trolling. If  that  animus  was  there,  upon  which  is 
based  the  true  origin  of  a  State,  then,  by  whatever 
means  this  subjective  condition  obtained  objective 
manifestation,   we   should   be   justified    in    declaring 

30 


THE   NATURE   OF  THE  AMERICAN  STATE 

that  a  National  State  was  created;  and  in  asserting 
that,  though  the  people  thought  themselves  to  be  act- 
ing as  States,  yet,  in  truth,  the  fact  that  they  were 
seeking  the  establishment  of  a  political  power  which 
was  to  destroy  the  existence  of  those  States  as  sover- 
eign bodies,  necessarily  produced  the  result  that  the 
participation  of  the  States  in  the  establishment  of  the 
new  government  Avas  no  more  than  a  formal  one,  and 
that,  in  reality,  theii-  governmental  organs  were  used 
by  a  single  People  for  the  performance  of  a  truly  Na- 
tional act.  But  the  difficulty  is,  as  we  have  already 
learned,  that  though  the  people  intended  to  create, 
and  thought  that  they  were  creating  a  National  State, 
they  also  believed  that  they  were  not  sacrificing  the 
sovereignty  of  their  several  Commonwealths. 

These,  then,  being  the  facts,  and  remembering  that 
the  creating  cause  of  a  State  is  that  there  exists  in  a 
community  a  "General  Will"  demanding  political 
unity,  it  plainly  appears  that  the  answer  to  the  ques- 
tion whether  or  not  there  was  created,  or  rather  ex- 
isted, in  1789  a  single  sovereign  People,  turns  upon 
the  point  whether  at  that  time  there  was  a  stronger 
desire  for  national  unity  than  for  the  continued  sov- 
ereignty of  the  several  States.  In  other  words,  the 
question  is :  If  the  fact  had  been  clearly  presented  to 
the  people  that  sovereignty  cannot  be  divided,  and 
that,  therefore,  they  must  choose  between  National 
Sovereignty  and  absolute  State  Sovereignty,  which 
w-ould  they  then  have  selected?  To  such  a  hypothet- 
ical question  there  cannot  of  course  be  given  an  ab- 
solutely certain  reply.  We  think,  however,  that  the 
preponderating  opinion   of  historians  of  all   schools, 

31 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


nationalistic  and  particularistic,  is  that  had  this  al- 
ternative been  thus  sharply  outlined  in  1789,  the 
proposed  Constitution  would  have  failed  of  ratifica- 
tion by  a  sufficient  number  of  States  to  enable  it  to  go 
into  operation.  For,  as  it  was,  it  was  only  with  the 
greatest  difficulty  that  its  adoption  was  secured. 
I  This  being  so,  we  are,  as  a  consequence,  almost  forced 
I  to  say  that  the  adoption  of  the  Constitution  and  the 
[establishment  of  a  government  according  to  its  pro- 
'  visions  was  not  a  demonstration  of  the  fact  that  a 
[truly  sovereign,  national  State  had  come  into  being. 
At  first  thought  this  seems  to  be  a  very  important 
admission,— one  that  goes  very  far  toward  support- 
ing the  claims  of  the  States'  Rights  School  as  made 
from  time  to  time  during  our  history  since  1789.  But 
let  us  see  to  what  extent  this  is  the  necessary  result. 
Recurring  to  our  analysis  of  the  nature  of  sovereignty, 
we  i-emember  that,  though  we  say  that  the  force  that 
creates  a  State,  and  therefore  its  sovereignty,  is  the 
General  Will  of  a  People  demanding  political  unity, 
the  State  itself  cannot  be  said  really  to  exist  until  this 
will  has  become  objectively  manifested,  that  is,  has 
found  expression  in  the  creation  of  some  sort  of  gov- 
ernmental organization  through  which  its  desires  may 
be  satisfied.  So  also,  rea*soning  in  the  other  direction, 
we  say  that  so  soon  as  a  People  ceases  to  yield  general 
obedience  to  the  commands  of  a  given  political  or- 
ganization, and  thus  in  deed  and  fact  no  longer  recog- 
nizes its  sovereignty,  and,  indeed,  renders  obedience 
to  the  laws  of  another  political  power,  the  old  sover- 
eignty is  destroyed  and  a  new  one  has  taken  its  place. 
In  such  a  case,  however  peaceably  and  gradually  the 
transition  may  have  been  effected,  the  change  must  be 

32 


THE  NATURE   OF  THE  AMERICAN  STATE 

held  to  have  been  illegal  and  revolutionary  in  char- 
acter when  looked  at  from  the  standpoint  of  the  old 
State ;  for  there  is  no  legal  means  by  which  the  sover- 
eignty of  one  or  several  bodies  politic  may  be  trans- 
ferred to  a  new  political  entity.  In  fine,  sovereignty, 
though  itself  the  source  of  all  law,  is  not  itself^ 
founded  upon  law.  It  is  based  wholly  upon  fact,  and 
its  existence  has  to  be  demonstrated  as  such.  Bearing 
in  mind,  then,  this  fact,  and  granting  that  the  Con- 
stitution at  the  time  of  its  adoption,  created,  and  was 
intended  to  create,  a  Confederacy,  it  may  properly  be 
argued  that  there  soon  came  into  being  a  national 
feeling  which  created  a  national  sovereignty  that  was 
objectively  realized  both  in  explicit  declaration  and  in 
fact^Adopting  this  reasoning  it  may  be  said  that  the  ^\X/\/^^^XA. 
circumstance  that  the  Constitution  was  so  indefinitely 
worded  that  it  could  be  interpreted  as  creating  a  Na- 
tional State,  without  doing  too  much  violence  to  the 
meaning  of  its  terms,  enabled  the  people,  through 
Qongress  and  tjie^  Supreme  Courjt^  to  satisfy  their 
desire  for  political  unity  without  a  resort  to  open 
revolutionary  means.  Still,  it  must  be  conceded  by 
those  who  take  this  view,  that  however  peaceably  and 
gradually  the  transformation  to  a  Federal  State  was 
effected,  the  change  was  necessarily  revolutionary  in 
character.  It  does  not  help  them  •  to  point  to  the 
manner  in  which  its  steps  were  clothed  in  apparent 
legal  form.  In  our  next  chapter,  then,  wc  shall  con-\ 
sider  some  of  the  events  following  the  inauguration  of  \ 
the  new  government  which  tend  to  demonstrate  that,  I 
however  confederate  in  character  the  Union  may  have  I 
been  at  the  time  of  its  creation,  a  National  Federal  / 
State  soon  came  into  being. 


3 


33 


CHAPTER  III 

THE    DEVELOPMENT    OF    NATIONAL    SOVEREIGNTY 

We  are  warranted  in  assuming  that,  from  the  very 
beginning  of  the  new  regime,  the  great  improvement 
both  in  political  and  commercial  conditions  must  have 
tended  to  impress  the  people  generally  with  the  ad- 
vantages of  an  effective  central  government.  Such 
measures  of  national  legislation  as  the  Impost  and 
Navigation  Acts,  the  reenactment  of  the  Northwest 
Ordinance,  the  assumption  of  state  debts,  the  estab- 
lishment of  a  National  Bank,  all  adopted  within  a 
few  years  after  the  establishment  of  the  new  central 
authority,  operated  greatly  to  increase  the  actual  in- 
fluence and  power  of  the  Federal  Government.  In- 
cidents such  as  the  successful  suppression  of  the  so- 
called  "Whisky  Rebellion"  in  Pennsylvania  must 
also  have  had  a  considerable  weight  in  the  same  direc- 
tion. None  of  these  exercises  of  the  federal  power, 
however,  with  the  possible  exception  of  the  last,  influ- 
ential though  they  may  have  been  to  evoke  the  senti- 
ment that  was  needed  to  create  and  maintain  a  na- 
tional State,  involved  any  explicit  assumption  of  a 
federal  authority  necessarily  inconsistent  with  the 
continued  existence  of  the  sovereignty  of  the  indi- 
vidual States. 

34 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 

//  Yqv  such  decisive  declarations  we  must  turn  to  the 
decisions  of  the  Supreme  Court  of.  the  United  States. 
Seizing  upon  three  generally  worded  clauses  of  the 
Constitution  this  tribunal,  presided  over  by  justices, 
the  majority  of  whom  were  nationalistic  in  sentiment, 
soon  gave  to  the  federal  power  such  an  interpretation 
as  clearly  to  demonstrate  that  henceforth  sovereignty 
in  the  American  State  was  to  reside  in  the  Union.  The 
three  constitutional  clauses  thus  utilized  were  the  fol- 
lowing: 

1.  "This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof;  and  all  treaties 
made,  or  which  shall  be  made,  under  the  authority  of  the  United 
States,  shall  be  the  supreme  law  of  the  land;  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in  the  Con- 
stitution or  laws  of  any  State  to  the  contrary  notwithstand- 
ing."    (Art.  VI,  Sec.  2.) 

2.  "The  judical  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  courts  as  the  Con- 
gress may  from  time  to  time  ordain  and  establish.  .  .  .  The 
judicial  power  shall  extend  to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States, 
and  treaties  made,  or  which  shall  be  made,  under  their  au- 
thority."   (Art.  Ill,  Sees.  1  and  2.) 

3.  "  The  Congress  shall  have  power  ...  to  make  all  laws 
which  shall  be  necessary  and  proper  for  can-ying  into  execu- 
tion the  foregoing  powers,  and  all  other  powers  vested  by 
this  Constitution  in  the  Government  of  the  United  States,  or 
in  any  department  or  office  thereof."     (Art.  I,  Sec.  8.) 

The  first  of  these  clauses  was  made  to  mean  that 
whatever  exercise  of  federal  power  the  Supreme  Court 
of   the   United    States   should    decide   to    be   consti- 

35 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tutional,  the  people  and  governments  of  the  individual 
States  should  accept  as  legally  binding,  and  whatever 
acts  of  the  States  it  should  hold  unconstitutional  they 
should  consider  as  null  and  void.  The  second  of  these 
clauses  was  made  to  give  to  the  federal  court  full 
jurisdiction  to  consider  all  questions  of  conflict  be- 
tween the  federal  and  state  authorities.  The  third 
was  employed  to  enable  that  tribunal  to  sanction  the 
exercise  by  the  Federal  Government  of  a  range  of 
powers  sufficient  to  enable  it  effectively  to  perform  its 
functions  as  a  sovereign,  National  State. 

One  of  the  very  first  laws  passed  by  the  federal  leg- 
islature was  the  famous  Judiciary  Act  which  created 
the  inferior  federal  courts  author]  zed 'by  the  Constitu- 
tion and  outlined  both  their  fields  of  jurisdiction 
and  the  appellate  jurisdiction  of  the  Supreme  Court. 
To  the  importance  of  the  twenty-fifth  section  of  this 
Act  which  provided  for  a  final  review  by  that  tri- 
bunal of  all  cases  decided  in  the  highest  courts  of  the 
several  Commonwealths  in  which  should  be  drawn  into 
question  the  relative  competences  of  the  Union  and  of 
the  Commonwealths,  and  in  which  the  decisions  of  the 
States'  courts  should  be  adverse  to  the  federal  power, 
we  shall  later  refer. 

A  liberal  construction  by  Congress  and  the  Execu- 
tive of  the  powers  of  the  Federal  Government  began 
almost  immediately  after  the  adoption  of  the  Consti- 
tution, as  was  especially  shown  in  the  establishment 
in  1791  of  a  National  Bank  and  in  the  appellate 
jurisdiction  granted  the  Supreme  Court.  The  consti- 
tutionality of  the  exercise  of  these  powers  was  vigor- 
ously denied  by  those  who  objected  to  such  an  increase 

36 


DEVELOPMENT  OF  NATIONAL   SOVEREIGNTY 

of  federal  power  and  influence,  but  the  first  open 
threat  of  resistance  to  the  National  Government  was 
in  1793.  This  was  brouj?ht  about  by  the  assumption 
by  the  federal  Supreme  Court  of  jurisdiction  to  hear 
and  determine  a  suit  brought  against  the  State  of 
Georgia  by  a  citizen  of  another  State,  and  the  actual 
rendition  by  it  of  a  judgment  against  that  State 
(Chisholm  v.  Georgia,  2  Dallas,  419).  Many  of  the 
States  took  immediate  alarm  at  this  decision,  not  sim- 
ply because  they  had  debts  the  collection  of  which 
might  thus  be  enforced  against  them,  but  upon  the 
political  ground  that  thus  to  hold  them  amenable  to 
suit  was  a  practical  denial  of  that  sovereignty  which 
they  claimed  still  to  possess.  That  they  were  fully 
justified  in  attaching  this  significance  to  the  decision 
is  shown  in  the  words  of  Justice  James  Wilson,  who  in 
the  opinion  which  he  rendered  in  the  case,  said :  ' '  This 
is  a  case  of  uncommon  magnitude.  One  of  the  parties 
to  it  is  a  State ;  certainly  respectable,  claiming  to  be 
sovereign.  The  question  to  be  determined  is,  whether 
this  State,  so  respectable,  and  whose  claim  soars  so 
high,  is  amenable  to  the  jurisdiction  of  the  Supreme 
Court  of  the  United  States  1  This  question,  important 
in  itself,  will  depend  on  others,  more  important  still ; 
and  may,  perhaps,  be  ultimately  resolved  into  one  no 
less  radical  than  this — 'do  the  people  of  the  United 
States  form  a  nation?'  "  Answering  this  question, 
Wilson  declared:  "As  to  the  purposes  of  the  Union 
.  .  .  Georgia  is  not  a  sovereign  State." 

After  the  rendition  of  this  decision  the  State  of 
Georgia  declared  her  intention  of  refusing  to  allow  it 
to  be  enforced,  and  passed  a  law  threatening  death 

37 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

to  any  one  who  should  attempt  its  execution.  Actual 
collision  between  the  state  and  the  federal  authority, 
however,  was  avoided  by  the  adoption  of  a  constitu- 
tional amendment  declaring  that  the  judicial  power  of 
the  United  States  should  not  be  construed  to  extend 
to  suits  brought  against  the  States  by  citizens  of  other 
States. 

From  this  dispute  the  Federal  Government  emerged 
clearly  the  winner,  it  being  established  that  only  by 
an  express  constitutional  amendment  were  the  States 
to  be  released  from  being  dragged  unwillingly  to  the 
bar  of  a  federal  tribunal. 

In  1794  came  the  next  threat  of  resistance  to  the 
Federal  Government.  A  considerable  number  of  the 
people  of  western  Pennsylvania  refused  to  pay  the 
excise  upon  whisky  levied  by  an  act  of  Congress  of 
1791.  At  the  call  of  the  President  of  the  United 
States  the  militia  of  Pennsylvania  took  the  field, 
whereupon,  overawed  by  this  display  of  force,  the  re- 
sistance to  the  execution  of  the  federal  law  melted 
away.    Thus  again  was  federal  authority  maintained. 

In  1798-99  were  issued  by  the  legislatures  of  two 
of  the  States  Resolutions  asserting  that  the  Federal 
Union  was  based  upon  a  compact  between  the  States, 
and  very  nearly,  if  not  quite,  asserting  the  doctrine 
that  a  State  had  the  right  to  declare  void  and  refuse 
obedience  to  laws  which  it  should  deem  unwarranted 
by  the  terms  of  that  compact.  The  effect  of  these 
Virginia  and  Kentucky  Resolutions  was,  however,  to 
strengthen  the  national  theory,  for  no  other  State 
recognized  their  doctrines  as  correct,  but,  upon  the 
contrary,  most  of  the  other  Commonwealths  by  resolu- 

38 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 


5t  whieh\ 
ards  en-  | 
t,  too,  in/ 


tion  explicitly  declared  them  dangerous  or  erroneous. 
Furthermore,  the  very  acts  of  Congress  against 
these  Resolutions  were  directed  were  afterwards 
forced  in  Virginia  without  resistance,  and  that, 
a  most  offensive  manner.^ 

In  1801  the  strict  constructionist  Republicans  under 
Jefferson  came  into  power,  but,  so  strong  was  the  na- 
tional drift  that  his  administration  witnessed  the  an- 
nexation of  the  vast  Louisiana  Territory  and  the 
enactment  of  the  Cumberland  Road  Bill— both  mea- 
sures requiring  for  their  constitutionality  a  very  elas- 
tic interpretation  of  the  powers  of  the  Federal  Gov- 
ernment. 

In  1803  came  the  decision  of  the  Supreme  Court  of 
the  United  States  in  the  famous  case  of  Marbury  v. 
Madison  (1  Cr.,  137),  in  which,  for  the  first  time,  an 
act  of  Congress  was  explicitly  declared  unconstitu- 
tional and  therefore  void  of  legal  force.  The  great 
significance  of  the  decision  consisted  not  simply  in 
that  it  upheld  the  power  of  the  federal  judiciary  as 
opposed  to  that  of  the  federal  legislature,  but  that  it 
pointed  out  that  the  tribunal  to  which  resort  should  be 
had  for  an  authoritative  and  final  decision  in  the  case 
of  a  federal  enactment  of  doubtful  constitutionality 
was  not  to  the  member  States  of  the  Union  but  to  .the 
federal  Supreme  Court. 

In  this  case  the  imperative  character  of  the  Consti- 
tution was  declared  in  the  following  words:  "That 
the  people  have  an  original  right  to  establish  for  their 

1  For  example,  in  the  trial  and  conviction  of  Callcnder.  For 
his  alleged  unjudicial  conduct  in  this  case  the  presiding  federal 
judge,  Chase,  was  afterwards  impeached  but  acquitted. 

39 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

future  government  such  principles  as,  in  their  opinion, 
shall  most  conduce  to  their  own  happiness,  is  the  basis 
on  which  the  whole  American  fabric  has  been  erected. 
The  exercise  of  this  original  right  is  a  very  great  ex- 
ertion, nor  can  it  nor  ought  it  to  be  frequently  re- 
peated. The  principles,  therefore,  so  established,  are 
deemed  fundamental.  And,  as  the  authority  from 
which  they  proceed  is  supreme,  and  can  seldom  act, 
they  are  designed  to  be  permanent.  This  original 
and  supreme  will  organizes  the  government  and  as- 
signs to  different  departments  their  respective  powers. 
It  may  either  stop  here  or  establish  certain  limits  not 
to  be  transcended  by  those  departments.  The  gov- 
ernment of  the  United  States  is  of  the  latter  descrip- 
tion. The  powers  of  the  legislatures  are  defined  and 
limited ;  and  that  those  limits  may  not  be  mistaken  or 
forgotten,  the  Constitution  is  written.  To  what  pur- 
pose are  powers  limited,  and  to  what  purpose  is  that 
limitation  committed  to  writing,  if  these  limitations 
may,  at  any  time,  be  passed  by  those  intended  to  be 
restrained?" 

In  the  next  year,  1804,  the  Supreme  Court,  in  the 
case  of  The  United  States  v.  Fisher  (2  Cr.,  358),  laid 
down  in  the  clearest  manner  possible  the  doctrine 
that  the  Federal  Government,  in  the  exercise  of  the 
powers  specifically  granted  to  it,  is  not  restricted  to 
the  employment  of  simply  those  means  that  are  indis- 
pensably necessary,  but  may  make  use  of  any  means 
that  are  calculated  to  assist  in  attaining  an  end  speci- 
fically authorized  by  the  Constitution.  "It  would  be 
incorrect  and  would  produce  endless  difficulties,"  says 
the  Court,  "if  the  opinion  should  be  maintained  that 

40 


DEVELOPMENT  OF  NATIONAL   SOVEREIGNTY 

no  law  was  authorized  which  was  not  indispensably 
necessary  to  give  effect  to  a  specified  power.     Where 
various  systems  might  be  adopted  for  that  purpose,  it 
might  be  said,  with  respect  to  each,  that  it  was  not 
necessarv  because  the  end  might  be  reached  by  other 
means. >^Congress  must  possess  the  choice  of  means,! 
and  must  be  empowered  to  use  any  means  which  are,) 
in  fact,  conducive  to  the  exercise  of  a  power  granted! 
by  the  Constitution.'^ 

Five  years  later,  in  1809,  was  decided  the  case  of 
The  United  States  v.  Peters  (5  Cr.,  115),— a  case 
which  involved  a  direct  contest  of  power  and  authority 
between  the  Federal  Government  and  the  State  of 
Pennsylvania.  A  vessel,  the  sloop  Active,  had  been 
condemned  and  sold  in  1777  as  a  prize  by  the  admi- 
ralty court  of  Pennsylvania.  Upon  appeal  to  the 
Committee  of  Appeals  of  the  Continental  Congress 
this  decision  had  been  overruled  and  the  state  mar- 
shal forbidden  to  pay  over  the  proceeds  to  the  state 
court.  Notwithstanding  this  order,  however,  the 
money  was  paid  over,  and  ultimately  found  its  way 
into  the  state  treasury.  In  1803  suit  was  brought  in 
a  federal  District  Court  to  recover  this  money  from 
the  estate  of  the  state  treasurer,  Rittenhouse,  then 
deceased,  and  judgment  was  obtained.  Thereupon  the 
legislature  of  Pennsylvania  passed  an  act  denying  the 
authority  of  the  federal  court  in  the  premises,  and 
directing  the  state  executive  to  prevent,  by  force,  if 
necessary,  the  execution  of  the  federal  decree.  Re- 
peated efforts  to  obtain  a  peaceful  settlement  having 
failed,  a  writ  of  mandamus  was  asked  for  from  the 
Supreme  Court  of  the  United  States  to  compel  the 

41 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

district  judge  to  enforce  his  judgment.  In  passing 
upon  the  request  thus  raised,  Chief  Justice  Marshall 
clearly  recognized  that  the  very  existence  of  the  Na- 
tional Government  as  a  competent  central  authority 
was  involved.  "If,"  he  said,  "the  legislatures  of  the 
several  States  may,  at  will,  annul  the  judgments  of 
the  courts  of  the  United  States,  and  destroy  the  rights 
acquired  under  these  judgments,  the  Constitution  it- 
self becomes  a  solemn  mockery;  and  the  Nation  is 
deprived  of  the  means  of  enforcing  its  laws  by  the 
instrumentality  of  its  own  tribunals.  So  fatal  a  re- 
sult must  be  deprecated  by  all,  and  the  people  of 
Pennsylvania,  not  less  than  the  citizens  of  every  other 
State,  must  feel  a  deep  interest  in  resisting  principles 
so  destructive  of  the  Union  and  in  asserting  conse- 
quences so  fatal  to  themselves."  "The  act  in  ques- 
tion, "continued  the  Chief  Justice, "does  not,  in  terms, 
assert  the  universal  right  of  the  State  to  interpose  in 
every  case  whatever;  but  assigns,  as  a  motive  for  its 
interposition  in  this  particular  case,  that  the  sentence, 
the  execution  of  which  it  prohibits,  was  rendered  in  a 
cause  over  which  the  federal  courts  have  no  jurisdic- 
tion. If  the  ultimate  right  to  determine  the  juris- 
diction of  the  courts  of  the  Union  is  placed  by  the 
Constitution  in  the  several  state  legislatures,  then 
this  act  concludes  the  subject;  but  if  that  power 
necessarily  resides  in  the  supreme  judicial  tribunal  of 
the  nation  .  .  .  the  act  of  Pennsylvania,  with  whatever 
respect  it  may  be  considered,  cannot  be  permitted  to 
prejudice  the  question."  After  examining  and  re- 
futing the  claim  that  the  federal  district  court  did  not 
have   jurisdiction,    the    Chief   Justice    declared   that 

42 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 


"consequently  the  State  of  Pennsylvania  can  possess 
no  constitutional  right  to  resist  the  legal  process  which 
may  be  directed  in  this  cause."  "It  will  be  readily 
conceived,"  he  concluded,  "that  the  order  which  this 
court  is  enjoined  to  make  by  the  high  obligations  of 
duty  and  of  law,  is  not  made  without  extreme  regret 
at  the  necessity  which  has  induced  the  application. 
But  it  is  a  solemn  duty,  and  therefore  must  be 
performed.  A  peremptory  mandamus  must  be 
awarded." 

/^he  preeminent  importance  of  this  decision  of  a  case 
growing  out  of  the  tirst  open  resistance  of  a  State  to 
federal  authority  has  justified  the  foregoing  extensive 
quotation  from  it.  In  obedience  to  this  order,  the  dis- 
trict judge  issued  his  writ  of  attachment.  When, 
however,  it  was  attempted  to  be  served,  the  marshal 
found  the  Rittenhouse  residence  surrounded  by  state 
militia  which  had  been  called  out  by  the  Governor  in 
obedience  to  the  act  of  the  legislature.  The  marshal 
therefore  withdrew  and  summoned  a  posse  comiiatus 
of  two  thousand  men.  Appeal  was  then  made  by  the 
Governor  of  Pennsylvania  to  the  President  of  the 
United  States  to  prevent  the  execution  of  a  judgment 
founded,  it  was  declared,  upon  a  usurpation  of  power. 
Madison,  however,  declined  to  interfere,  and  the 
Pennsylvania  legislature  thereupon  gave  way  and 
the  money  was  paid  over.  Later  the  Federal  Govern- 
ment still  further  vindicated  its  authority  by  indict- 
ing, and  securing  the  conviction  of,  the  general  of  the 
Pennsylvania  militia  and  his  men  who  had  resisted 
the  service  of  the  federal  writ^ 

The  State  of  Pennsylvania,  thus  defeated,  suggested 
43 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


that  the  federal  Constitution  be  so  amended  as  to  pro- 
vide that  an  impartial  tribunal  be  established  for  the 
trial  of  disputes  between  individual  States  and  the 

(United  States.  Upon  this  proposal  being-  sent  to  Vir- 
ginia, both  houses  of  the  legislature  of  that  State 
unanimously  condemned  it  and  declared  that  "a  tri- 
bunal is  already  provided  by  the  Constitution  of  the 
United  States,  to  wit,  the  Supreme  Court,  more  emi- 
nently qualitied,  from  their  habits  and  duties,  from 
the  mode  of  their  selection,  and  from  their  tenure  of 
office,  to  decide  the  disputes  aforesaid,  in  an  enlight- 
ened and  impartial  manner,  than  any  other  tribunal 
that  could  be  created." 

The  facts  of  this  famous  case,  together  with  the 
explicit  utterances  of  the  Supreme  Court,  certainly 
went  very  far  toward  demonstrating  that  already 
sovereignty  lay  in  the  United  States. 

In  1810  a  state  law  was  again  declared  unconstitu- 
tional and  therefore  void,^  this  time  upon  the  ground 
that  it  impaired  the  obligation  of  contracts,  a  charac- 
teristic that  has  since  operated  to  invalidate  well  on 
to  a  hundred  state  acts. 

In  1819  was  decided  the  case  of  McCulloch  v.  Mary- 
land (4  Wh.,  316),  which,  though  it  can  scarcely  be 
said  to  have  involved  the  enunciation  of  any  abso- 
lutely new  constitutional  principles  is  yet  important; 
first,  because  of  the  liberality  with  which  it  was  de- 
clared that  the  implied  poM^ers  of  the  Federal  Gov- 
ernment should  be  construed;  second,  because  of  the 
explicitness  with  which  it  was  asserted  that  a  State 
may  not  interfere  in  any  way,  by  taxation  or  other- 
1  Fletcher  v.  Peck,  6  Cr.,  87. 
44 


DEVELOPMENT  OF  NATIONAL   SOVEREIGNTY 


wise,  with  the  exercise  by  the  Federal  Government  of 
any  of  its  powers ;  and  third,  because  of  the  reasoning? 
by  which  these  two  principles  were  sought  to  be 
proved. 

The  principle  of  the  loose  construction  of  the  pow- 
ers of  Congress  was  declared  in  the   following  lan- 
guage.   After  speaking  of  the  powers  expressly  given 
to  Congress  by  the  Constitution,  Marshall  said:  "It 
must  have  been  the  intention  of  those  who  gave  these 
powers  to  insure,  as  far  as  human  prudence  could  in- 
sure, their  beneficial   execution.      This  could   not   be 
done  by  confiding  the  choice  of  means  to  such  narrow 
limits  as  not  to  leave  it  in  the  power  of  Congress  to 
adopt  any  which  might  be  appropriate  and  which  were 
"   conducive  to  the  end.     This  provision  is  made  in  a 
Constitution   intended   to   endure   for   ages   to   come, 
and,  consequently,  to  be  adapted  to  various  crises  of 
human   afifairs.     To   have   prescribed   the  means   by 
which  government  should  in  all  future  time  execute 
its  powers  would  have  been  to  change  entirely  the 
character  of  the  instrument,  and  give  it  the  properties 
of  a  legal  code.     It  would  have  been  an  unwise  at- 
tempt to  provide  by  immutable  rules  for  exigencies 
which,  if  foreseen  at  all,  must  have  been  seen  dimly, 
and  which  can  be  best  provided  for  as  they  occur.    To 
have  declared  that  the  best  means  shall  not  be  used, 
but  those  only  without  which  the  power  given  would 
be  nugatory,  would  have  been  to  deprive  the  executive 
of  the  capacity  to  avail  itself  of  experience,  to  exercise 
its  reason,  and  to  accommodate  its  legislation  to  cir- 
cumstances. ...  Let  the  end  be  legitimate,  let  it  be 
within  the  scope  of  the  Constitution,  and  all  means 

45 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

which  are  appropriate,  which  are  plainly  adapted  to 
that  end,  which  are  not  prohibited,  are  consistent  with 
the  letter  and  spirit  of  the  Constitution,  are  consti- 
tutional." 

The  case  of  McCulloch  v.  Maryland  had  arisen  out 
of  an  attempt  on  the  part  of  the  State  of  Maryland 
to  tax  the  United  States  Bank  which  the  Federal  Gov- 
ernment had  chartered  to  assist  it  in  the  conduct  of 
its  fiscal  affairs.  Having  demonstrated  the  constitu- 
tionality of  the  establishment  of  this  institution,  the 
attempt  of  a  State  to  control  it,  directly  or  indirectly, 
by  taxing  or  otherwise,  was  explicitly  denied  by  the 
Court  in  the  following  words:  "The  government  of 
the  United  States,  though  limited  in  its  powers,  is  su- 
preme within  its  sphere  of  action.  .  .  .  The  nation,  on 
those  subjects  on  which  it  can  act,  must  necessarily 
bind  its  component  parts.  ,  .  .  The  sovereignty  of  a 
State  extends  to  everything  which  exists  by  its  own 
authority,  or  is  introduced  by  its  permission ;  but  does 
it  extend  to  those  means  which  are  employed  by  Con- 
gress to  carry  into  execution  powers  conferred  on  that 
body  by  the  people  of  the  United  States?  We  think 
it  demonstrable  that  it  does  not.  .  .  .  The  court 
has  bestowed  on  this  subject  the  most  deliberate  con- 
sideration. The  result  is  a  conviction  that  the  States 
have  no  power,  by  taxation  or  otherwise,  to  retard, 
impede,  burden,  or  in  any  manner  control  the  opera- 
tions of  the  constitutional  laws  enacted  by  Congress 
to  carry  into  execution  the  powers  vested  in  the  Gen- 
eral Government.  This  is,  we  think,  the  unavoidable 
consequence  of  that  supremacy  which  the  Constitution 
has  declared." 

46 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 

Turning  now  to  the  reasoning  by  which  the  Court 
sustained  the  positions  it  took,  we  find  a  very  strongly 
nationalistic  interpretation  given  both  to  the  process 
by  which  the  federal  Constitution  was  adopted  and  to 
the  character  of  the  government  provided  for  by  it. 
After  adverting  to  the  fact  that  the  counsel  for  the 
State  of  Maryland  had  deemed  it  of  importance,  in 
the  construction  of  the  Constitution,  to  consider  that 
instrument  "not  as  emanating  from  the  people,  but  as 
the  act  of  sovereign  and  independent  States,"  and 
the  powers  of  the  General  Government  as  "delegated 
by  the  States,  who  alone  are  truly  sovereign,  and 
must  be  exercised  in  subordination  to  the  States, 
who  alone  possess  supreme  dominion,"  Marshall  de- 
clared: "It  would  be  difficult  to  sustain  this  propo- 
sition. The  convention  which  framed  the  Consti- 
tution was,  indeed,  elected  by  the  state  legislatures. 
But  the  instrument,  when  it  came  from  their  hands, 
M^as  a  mere  proposal,  without  obligation,  or  preten- 
sions to  it.  It  was  reported  to  the  then  existing 
Congress  of  the  United  States  with  a  request  that 
it  might  'be  submitted  to  a  convention  of  delegates, 
chosen  in  each  State,  by  the  people  thereof,  under 
the  recommendation  of  its  legislature  for  their  as- 
sent and  ratification.'  This  mode  of  proceeding  was 
adopted ;  and  by  the  convention,  by  Congress,  and  by 
the  state  legislatures,  the  instrument  was  submitted  to 
the  people.  They  acted  upon  it,  in  the  only  manner 
in  which  they  can  act  safely,  effectively,  and  wisely 
on  such  a  subject,  by  assembling  in  convention.  It  is 
true  they  assembled  in  their  several  States,  and 
where  else  could  they  have  assembled?     No  political 

47 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

dreamer  was  ever  wild  enough  to  think  of  breaking 
down  the  lines  which  separate  the  States,  and  of  com- 
pounding the  American  people  into  one  common  mass. 
Of  consequence,  when  they  act,  they  act  in  their 
States.  But  the  measures  they  adopt  do  not,  on  that 
account,  cease  to  be  the  measures  of  the  people  them- 
selves, or  become  the  measures  of  the  State  govern- 
ments. From  these  conventions  the  Constitution  de- 
rives its  whole  authority.  .  .  .  The  assent  of  the  States, 
in  their  sovereign  capacity,  is  implied  in  calling  a  con- 
vention, and  thus  submitting  that  instrument  to  the 
people.  But  the  people  were  at  perfect  liberty  to 
accept  or  reject  it ;  and  their  act  was  final.  It  required 
not  the  affirmance,  and  could  not  be  negatived,  by 
the  state  governments.  The  Constitution  when  thus 
adopted  was  of  complete  obligation,  and  bound  the 
state  sovereignties." 

In  1816  was  decided  by  the  Supreme  Court  of  the 
United  States  the  case  of  Martin  v.  Hunter's  Lessee 
(1  AVh.,  304),  in  which  Justice  Joseph  Story  prepared 
the  opinion,  and,  in  1821,  the  case  of  Cohens  v.  Vir- 
ginia (6  Wh.,  264),  in  which  Marshall  spoke  for  the 
Court.  These  two  cases  turned  upon  the  efforts  of 
the  State  of  Virginia  to  release  herself  from  what  she 
deemed  the  unconstitutional  humiliation  of  having  de- 
cisions of  her  highest  court  reviewed  in  the  Su- 
preme Court  of  the  United  States,  when  the  decisions 
of  her  court  were  adverse  to  alleged  federal  rights. 
Appeals  in  such  cases  from  the  highest  courts  of  the 
States  to  the  federal  tribunal  had  been  provided  for, 
as  has  been  before  noted,  by  the  famous  twenty-fifth 
section  of  the  Judiciary  Act  passed  in  1789. 

48 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 


The  constitutionality  of  this  section  had  been,  and 
later  still  was,  strenuously  resisted  by  the  upholders 
of  so-called  "  States '-Rights, "  '  and  well  they  might 
resist  it,  for  to  give  to  federal  judges  the  final  decision 
in  all  cases  of  conflict  between  state  and  federal  rights, 
even  when  such  conflicts  were  between  citizens  of  the 
same  State  and  litigated  in  the  courts  of  that  State, 
was  certainly  to  ascribe  a  paramountcy  to  the  National 
Government.  Calhoun  saw  this  clearly  enough  and 
declared:  "The  effect  of  this  is  to  make  the  govern- 
ment of  the  United  States  the  sole  judge,  in  the  last 
resort,  as  to  the  extent  of  its  powers,  and  to  place  the 
States  and  their  separate  governments  and  institu- 
tions at  its  mercy.  It  would  be  a  waste  of  time  to 
undertake  to  show  that  an  assumption  that  would  de- 
stroy the  relation  of  coordinates  between  the  govern- 
ment of  the  United  States  and  those  of  the  several 
States— which  would  enable  the  former,  at  pleasure, 
to  absorb  the  reserved  powers  and  to  destroy  the  in- 
stitutions, social  and  political,  which  the  Constitution 
was  ordained  to  establish  and  protect— is  wholly  in- 
consistent with  the  federal  theory  of  the  government, 
though  in  perfect  accordance  with  the  national  theory. 
Indeed,  I  might  go  further  and  assert  that  it  is,  of 
itself,  all  sufficient  to  convert  it  into  a  national,  con- 
solidated government. ' ' 

"The  government  of  the  United  States,"  said  the 
counsel  for  Virginia  in  the  case  of  Cohens  v.  Virginia, 
"operates  directly  upon  the  people,  and  not  at  all 
upon  the  state  governments.     The  state  governments 

1  See,  for  instance,  Calhoun's  "  Discourse  on  the  Constitution  and 
Government  of  the  United  States,"  Works,  I,  318-340. 

4  49 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

are  not  subject  to  this  government.  The  people  are 
subject  to  both  governments.  .  .  .  The  appellate  juris- 
diction conferred  by  the  Constitution  on  the  Supreme 
Court  is  merely  authority  to  revise  the  decisions  of  the 
inferior  courts  of  the  United  States.  .  .  .  Appellate  ju- 
risdiction signifies  judicial  power  over  the  decisions  of 
inferior  tribunals  of  the  same  sovereignty.  .  .  .  Con- 
gress is  not  authorized  to  make  the  supreme  court  or 
any  other  court  of  a  State  an  inferior  court.  .  .  .  The 
inferior  courts  spoken  of  in  the  Constitution  are  mani- 
festly to  be  held  by  federal  judges.  The  judicial  power 
to  be  exercised  is  the  judicial  power  of  the  United 
States ;  the  errors  to  be  corrected  are  those  of  that  ju- 
dicial power ;  and  there  can  be  no  inferior  courts  exer- . 
cising  the  judicial  power  of  the  United  States  other 
than  those  constituted  and  ordained  by  Congress.  .  .  . 
If  it  had  been  intended  to  give  appellate  jurisdiction 
over  the  state  courts,  the  proper  expressions  would 
have  been  used.  There  is  not  a  word  in  the  Constitu- 
tion that  goes  to  set  up  the  federal  judiciary  above 
the  state  judiciary.  .  .  .  Can  it  be  believed  that  it  was 
meant  that  the  greatest,  the  most  consolidating  of  all 
the  powers  of  this  government,  should  pass  by  an  un- 
necessary implication?  " 

In  both  the  cases  of  Cohens  v.  Virginia  and  of  Mar- 
tin V.  Hunter's  Lessee  the  Supreme  Court  flatly  re- 
pudiated this  reasoning.  In  the  latter  it  declared: 
"It  is  the  case  .  .  .  not  the  court,  that  gives  the 
jurisdiction.  .  .  .  The  courts  of  the  United  States 
can,  without  question,  revise  the  proceedings  of  the 
executive  and  legislative  authorities  of  the  States, 
and  if  they  are  found  to  be  contrary  to  the  Consti- 

50 


DEVELOPMENT    OF  NATIONAL   SOVEREIGNTY 

tution  may  declare  them  to  be  of  no  legal  validity. 
Surely,  the  exercise  of  the  same  right  over  judicial 
tribunals  is  not  a  higher  or  more  dangerous  act  of 
sovereign  power." 

In  the  opinion  rendered  in  the  case  of  Cohens  v. 
Virginia,  in  which  the  whole  question  had  been  re- 
argued, speaking  with  reference  to  the  attempt  of 
Virginia  to  punish  an  individual  for  committing  an 
act  permitted  by  a  federal  statute,  Marshall  asserted 
the  sovereignty  of  the  National  Government  in  the 
following  emphatic  language.  "If  it  could  be 
doubted,"  he  declared,  "whether  from  its  nature  it 
[the  National  Government]  were  not  supreme  in  all 
cases  where  it  is  empowered  to  act,  that  doubt  w^ould 
be  removed  by  the  declaration  that  'this  Constitution 
and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made  or  which 
shall  be  made  under  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land;  and  the  judges 
in  every  State  shall  be  bound  thereby,  anything  in  the 
constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding.' This  is  the  authoritative  language  of 
the  American  people,  and,  if  the  gentlemen  please,  of 
the  American  States.  .  .  .  The  people  made  the  Consti- 
tution and  the  people  can  unmake  it.  .  .  .  But  this  su- 
preme and  irresistible  power  to  make  or  to  unmake 
resides  only  in  the  whole  body  of  the  people ;  not  in 
any  subdivision  of  them.  The  attempts  of  any  of  the 
parts  to  exercise  it  is  usurpation,  and  ought  to  be  re- 
pelled by  those  to  whom  the  people  have  delegated  the 
power  of  repelling  it.  .  .  .  The  framers  of  the  Consti- 
tution were  indeed  unable   to  make   any  provisions 

51 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


/ 


which  should  protect  that  instrument  against  a  gen- 
eral combination  of  the  States,  or  of  the  people  for  its 
destruction ;  and,  conscious  of  this  inability,  they  have 
not  made  the  attempt.  But  they  were  able  to  provide 
against  the  operation  of  measures  adopted  in  any  one 
State,  whose  tendency  might  be  to  arrest  the  execution 
of  the  laws;  and  this  it  was  the  part  of  wisdom  to 
attempt.     We  think  they  have  attempted  it." 

In  1824,  in  Osborn  v.  Bank  of  the  United  States 
(9  Wh.,  738),  the  attempt  of  Ohio  to  tax  the  federal 
bank  was  declared  unconstitutional.  In  1829,  in  Wes- 
ton V.  Charleston  (2  Pet.,  449),  a  municipal  tax  on 
stock  of  the  United  States  held  by  inhabitants  of 
the  city  of  Charleston  was  held  improper.  In  1824, 
in  the  case  of  GibHons  v.  Ogden  (9  Wh.,  1),  was  begun 
that  long  line  of  decisions  which  has  established  the 
power  of  the  United  States  to  regulate  interstate  com- 
merce free  from  state  interference— an  authority  the 
exercise  of  Avhich  has  done  so  much  to  increase  the 
actual  power  and  influence  of  the  National  Govern- 
ment. In  this  case  a  law  of  the  State  of  New  York 
was  held  void. 

In  1823  a  law  of  Kentucky  was  held  of  no  force  by 
the  federal  court  (Green  v.  Biddle,  8  Wh.,  1),  and  in 
1830  a  law  of  Missouri  received  similar  treatment 
(Craig  V.  Missouri,  4  Pet.,  410). 

We  may  stop  now  for  a  moment  to  summarize  the 
light  that  forty  years  of  actual  experience  had  thrown 
upon  the  question  as  to  the  character  of  the  General 
Government  established  in  1789.  Certainly  it  must 
be  granted  that  the  officially  declared  views  and  the 
realized  facts  had  demonstrated  the  absolute  sover- 

52 


DEVELOPMENT   OF   NATIONAL  SOVEREIGNTY 

eignty  of  the  federal  power  so  conclusively  as  properly 
to  place  that  question  outside  of  the  sphere  of  de- 
batable political  theory.  Not  only  had  the  supre- 
macy of  the  General  Government  in  the  exercise  of 
its  express  and  implied  powers  been  stated  and  en- 
forced in  the  most  unqualified  manner,  but,  more  im- 
portant still,  and  in  itself  practically  decisive  of  the 
question  as  to  the  location  of  sovereignty  in  our  fed- 
eral system,  the  principle  had  been  authoritatively 
asserted  and  maintained  that  the  settlement  of  all 
disputes  as  to  the  relative  competences  of  the  state  and 
federal  governments,  whether  originating  in  the  state 
or  federal  courts,  was  placed  finally  and  absolutely 
in  the  hands  of  the  supreme  judicial  organ  of  the 
federal  power.  The  reasoning  and  the  conclusions  of 
the  Virginia  and  Kentucky  Resolutions  had  been  re- 
pudiated by  the  other  States,  and  in  one  form  or 
another  the  federal  supremacy  had  been  vindicated 
as  against  the  efforts  at  interference,  resistance,  or 
protests  of  Pennsylvania,  Kentucky,  Virginia,  Mary- 
land, Ohio,  New  York,  South  Carolina,  and  Massa-^ 
chusetts.^  y^ 

The  only  instance  up  to  this  time  in  which  the 
federal  power  had  been  successfully  resisted  by  the 
authorities  of  a  State  was  that  in  which  Georgia  had 
refused,  and  had  not  been  compelled,  to  be  guided  by 
federal  treaties  and  law  governing  the  rights  of  the 
Creek  and  Cherokee  Indians  living  within  her  borders. 

1  Massachusetts'  protests  against  the  Embargo  Act  were  disre- 
garded. In  M'Kim  v.  Vorhies,  7  Cr.,  279,  the  attempt  of  a 
Kentucky  court  to  enjoin  the  enforcement  of  a  judgment  of  a 
federal  court  was  repelled. 

53 


•THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

But  this  successful  resistance  to  federal  law  was  ren- 
dered possible  not  because  of  the  actual  or  legal  in- 
ability of  the  National  Government  to  compel  obedi- 
ence to  its  commands,  but  because  of  the  refusal  of 
the  President  to  take  the  steps  necessary  for  the  en- 
forcement of  the  orders  of  the  federal  courts. 

In  1828  was  enacted  by  Congress  the  Tariff  Act 
which  received  the  name  "Tariff  of  Abominations" 
and  which  was  considered  extremely  oppressive  by 
the  Southern  States.  The  dissatisfaction  thus  aroused 
caused  numerous  threats  of  resistance  and  even  of 
disunion.  In  December  of  1828  the  legislature  of 
South  Carolina  adopted  a  declaration  of  principles, 
or  "Exposition"  as  it  was  called,  which  had  been 
written  by  John  C.  Calhoun,  and  which  explicitly  an- 
nounced the  nullification  doctrine.  In  several  of  the 
other  States  of  the  South  the  same  doctrine  was  an- 
nounced. In  1830  came  the  famous  debate  in  the 
United  States  Senate  between  Webster  and  Hayne. 
In  1832  the  people  of  South  Carolina  assembled  in 
convention  and  issued  "an  ordinance  to  nullify  cer- 
tain acts  of  the  Congress  of  the  United  States  pur- 
porting to  be  laws."  This  ordinance  went  on  to 
declare  that  "it  shall  not  be  lawful  for  any  of  the 
constituted  authorities,  whether  of  this  State  or  of  the 
United  States,  to  enforce  the  payment  of  duties  im- 
posed by  the  said  acts  within  the  limits  of  this  State," 
and  concluding  wdth  the  statement  that  "we  do  fur- 
ther declare  that  we  will  not  submit  to  the  application 
of  force  on  the  part  of  the  federal  government  to  re- 
duce this  State  to  obedience ;  but  that  vze  will  consider 
the  passage  by  Congress  of  any  act  authorizing  the 

54 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 

employment  of  a  military  or  naval  force  against  the 
State  of  South  Carolina,  her  constitutional  authorities 
or  citizens,  or  any  act  abolishing  or  closing  the  in- 
gress or  egress  of  vessels  to  or  from  the  said  ports  .  .  . 
as  inconsistent  with  the  longer  continuance  of  South 
Carolina  in  the  Union;  and  that  the  people  of  South 
Carolina  will  henceforth  hold  themselves  absolved 
from  all  further  obligation  to  maintain  or  preserve 
their  political  connection  with  the  people  of  the  other 
States ;  and  will  forthwith  proceed  to  organize  a  sepa- 
rate government,  and  do  all  other  acts  and  things 
which  sovereign  and  independent  States  may  of  right 
do." 

In  pursuance  of  this  ordinance  the  legislature  of 
South  Carolina  passed  laws  which,  it  was  said  at  the 
time,  "legislated  the  Federal  Government  out  of  the 
State  of  South  Carolina." 

Meanwhile  South  Carolina  had  sent  her  procla- 
mation of  nullification  to  the  legislatures  of  the  other 
States.  Without  exception,  where  an  answer  to  it  was 
returned,  it  was  in  condemnation  of  the  principles 
enunciated.  This  was  no  less  true  of  the  Southern 
than  of  the  Northern  States.  Virginia,  though  as- 
serting her  continued  adherence  to  the  doctrines  of 
the  Resolutions  of  1798,  declared  that  they  did  not 
sanction  those  put  forward  by  South  Carolina.  North 
Carolina  declared  the  doctrines  of  her  sister  State 
"revolutionary  in  character,"  and  "subversive  of  the 
Constitution  of  the  United  States."  Alabama  char- 
acterized them  as  "unsound  in  theory  and  dangerous 
in  practice — unconstitutional  and  essentially  revolu- 
tionary;" and  Mississippi  stigmatized  them  as  "con- 

55 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


trary  to  the  letter  and  spirit  of  the  Constitution  and 
in  direct  conflict  with  the  welfare,  safety,  and  inde- 
pendence of  every  State  in  the  Union,"  and  declared 
that  she  would  "indignantly  frown  upon  the  first 
dawning  of  every  attempt  to  alienate  any  portion  of 
our  country  from  the  rest,  or  to  enfeeble  the  ties 
which  link  together  the  various  parts." 

As  is  well  known,  the  emphatic  utterances  and  en- 
ergetic actions  of  President  Jackson  compelled  South 
Carolina  to  withdraw  from  the  position  she  had  as- 
sumed. Thus  once  again  the  Federal  Government 
vindicated  its  supremacy. 

From  1835  to  the  outbreak  of  the  Civil  War  there 
can  be  no  question  but  that  the  Supreme  Court  of  the 
United  States  exerted  a  much  less  potent  influence  in 
solidifying  and  expanding  the  federal  power  than  it 
had  exercised  during  the  thirty-five  years  preceding. 
During  the  two  terms  of  office  of  Jackson,  five  vacan- 
cies occurred  in  the  Supreme  Court,  among  them  that 
of  the  Chief-Justiceship  to  which  Taney  was  ap- 
pointed in  1835.  The  effect  of  the  new  appointments 
upon  the  views  of  the  Court  was  shown  almost  imme- 
diately. In  the  case  of  Briscoe  v.  Bank  of  Kentucky 
(11  Pet.,  257),  which  had  been  argued  just  before  the 
death  of  Marshall,  the  issue  by  the  bank  of  bills  of 
credit  had  been  held  unconstitutional.  A  rehearing 
being  granted,  however,  and  the  case  coming  on  for 
argument  under  Taney,  the  action  of  the  bank  was 
sustained  and  the  previous  decision  reversed.  This 
decision  marked  the  beginning  of  a  new  era  in  the 
history  of  constitutional  interpretation.  Up  to  this 
time  the  court  had  upon  all  possible  occasions  upheld 

56 


DEVELOPMENT  OF  NATIONAL   SOVEREIGNTY 

the  General  Government  in  the  exercise  of  its  powers, 
and  had  held  the  States  strictly  to  the  obligations  im- 
posed upon  them  by  the  Constitution ;  now,  however, 
it  began,  if  anything,  to  lean  the  other  way.  In  Bris- 
coe's case,  departing  from  its  former  practice,  by  an 
extremely  loose  interpretation  of  a  constitutional  limi- 
tation that  had  been  laid  upon  the  States,  it  rendered 
practically  nugatory  one  of  the  provisions  of  the  Con- 
stitution. Other  decisions,  similarly  favorable  to 
States'  Rights,  followed.  In  the  case  of  City  of  New 
York  V.  Miln  (11  Pet.,  102),  a  state  law  was  sustained 
which  might  easily  have  been  held  an  interference 
with  the  federal  control  of  interstate  commerce.  In 
the  Charles  River  Bridge  Co.  v.  Warren  Bridge  Co. 
(11  Pet.,  420),  a  doubtful  State  law  was  again  up- 
held. In  1847  in  a  series  of  warmly  contested  cases 
known  as  the  License  Cases  (5  How.,  504)  interpre- 
tations of  the  Commerce  Clause  favorable  to  the  States 
were  given.  In  Kentucky  v.  Dennison  (24  How.,  66), 
it  was  held  that  though  the  federal  Constitution  made 
it  a  duty  of  a  State  to  surrender  to  another  State  a 
fugitive  from  justice  from  that  State,  there  was  no 
constitutional  means  by  which  the  Federal  Govern- 
ment could  compel  the  performance  of  that  duty.  In 
all  these  cases  the  States  were  favored  at  the  expense 
of  the  authority  of  the  General  Government.  In  1845 
Justice  Story  wrote  to  a  friend:  ''I  have  been  long 
convinced  that  the  doctrines  and  opinions  of  the  old 
court  were  daily  losing  ground,  and  especially  those 
on  great  constitutional  questions.  New  men  and  new 
opinions  have  succeeded.  The  doctrines  of  the  Con- 
stitution, so  vital  to  the  country,  which  in  former 

57 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

times  received  the  support  of  the  whole  court,  no 
longer  maintain  their  ascendency.  I  am  the  last 
member  now  living  of  the  old  court,  and  I  cannot  con- 
sent to  remain  where  I  can  no  longer  hope  to  see 
those  doctrines  recognized  and  enforced."  Again, 
writing  to  Justice  McLean,  he  said :  ' '  There  will  not, 
I  fear,  ever,  in  our  day,  be  any  case  in  which  a  law 
of  a  State,  or  of  Congress,  will  be  declared  uncon- 
stitutional ;  for  the  old  constitutional  doctrines  are 
fast  fading  away,  and  a  change  has  come  over  the 
public  mind  from  which  I  augur  little  good." 

In  1841,  in  Prigg  v.  Pennsylvania  (16  Pet.,  539),  a 
state  law  attempting  the  regulation  of  the  return  of 
fugitive  slaves  was  held  unconstitutional  and  void  on 
the  ground  that  this  subject  was  wholly  withdrawn 
from  the  control  of  the  States.  Taney,  however, 
though  concurring  with  the  majority  in  holding  un- 
constitutional the  particular  law  in  question,  took 
pains  to  assert  that  there  was  no  constitutional  incom- 
petence on  the  part  of  the  State  to  pass  laws  the  in- 
tention and  actual  effect  of  which  were  to  assist  the 
Federal  Government  in  the  capturing  and  returning 
of  fleeing  negroes. 

Regarding  the  attitude  of  the  Supreme  Court  dur- 
ing this  period,  the  important  fact  is  to  be  noticed 
that,  though  it  threw  the  weight  of  its  influence  upon 
the  side  of  the  States  so  far  as  concerned  a  liberal  in- 
terpretation of  the  powers  reserved  to  them  by  the 
Constitution,  not  once,  in  the  slightest  measure,  did 
it  during  these  years,  any  more  than  it  had  done  in 
the  years  preceding,  intimate  that  the  actual  legal  and 
political  supremacy  was  not  vested  in  the  National 

58 


DEVELOPMENT   OF  NATIONAL   SOVEREIGNTY 

Government.  The  position  of  Taney  and  of  the  court 
upon  this  point  was  clearly  shown  in  the  judgment 
rendered,  and  in  the  opinion  delivered,  in  the  case  of 
Ableman  v.  Booth  (21  How.,  506),  decided  in  1859. 
The  facts  of  this  case  were  these :  Booth  had  been  tried 
in  a  lower  federal  court  for  a  violation  of  the  federal 
fugitive  slave  law  of  1850,  and  had  been  found  guilty 
and  sentenced  to  imprisonment.  The  highest  court  of 
the  State  of  Wisconsin,  however,  stepped  in,  disre- 
garded this  judgment,  and  released  the  prisoner.  Not 
only  this,  but  it  went  on  to  declare  that  its  decision, 
thus  rendered,  was  subject  to  no  appeal  and  was  con- 
clusive upon  all  the  courts  of  the  United  States;  and 
when  a  writ  of  error  from  the  United  States  Supreme 
Court  directed  to  the  Wisconsin  court  was  issued,  the 
clerk  of  the  state  court  replied  to  it  that  he  had  been 
directed  to  make  no  return,  and  refused  to  make  up 
and  send  a  record  of  the  case  to  the  federal  court. 
Thereupon  the  Attorney-General  of  the  United  States 
filed  in  the  Supreme  Court  of  the  United  States  an 
uncertified  record  which  it  was  ordered  should  be  re- 
ceived as  though  returned  by  the  clerk  of  the  Wis- 
consin court.  Having  thus  gotten  the  case  before  it, 
despite  the  resistance  of  the  State,  the  decision  of  the 
Supreme  Court  thereupon  was  an  emphatic  condem- 
nation of  the  State's  action.  "No  State,  judge,  or 
court,"  declared  Taney,  who  rendered  the  opinion  of 
the  court,  "after  they  are  judicially  informed  that 
the  party  is  imprisoned  under  the  authority  of  the 
United  States,  has  any  right  to  interfere  with  him,  or 
to  require  him  to  be  brought  before  him.  And  if  the 
authority  of  the  State,  in  form  of  judicial  process  or 

59 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

otherwise,  should  attempt  to  control  the  marshal  or 
other  authorized  officer  or  agent  of  the  United  States, 
in  any  respect,  in  the  custody  of  his  prisoner,  it  would 
be  his  duty  to.  resist  it,  and  to  call  to  his  aid  any  force 
that  might  be  necessary  to  maintain  the  authority  of 
law  against  illegal  interference." 


60 


CHAPTER  IV 

SECESSION:    COERCION   OF   STATES:    RECONSTRUCTION 

In  the  foregoing  chapters  there  has  been  set  forth 
the  view  that  in  1789  the  establishment  of  a  national, 
sovereign  State,  as  distinguished  from  a  League  of 
independent  Commonwealths,  was  intended,  and  that 
though  in  form,  and  in  the  belief  of  its  creators,  de- 
riving its  life  from  a  voluntary  agreement  between 
sovereign  States,  the  union  then  effected  was  regarded 
as  one  from  which  its  commonwealth  members  might 
not  legally  secede.  But,  though  this  was,  as  we  be- 
lieve, the  view  generally  held  at  the  time  the  new  gov- 
ernment was  inaugurated,  assertions  of  both  a  consti- 
tutional and  an  ethical  right  on  the  part  of  the 
States  to  withdraw  at  will  were  soon  made.  In  the 
First  Congress,  Pierce  Butler  of  South  Carolina 
threatened  secession.  In  1795  plans  for  separation 
were  begun  in  Kentucky  and  western  Pennsylvania, 
but  these  latter  were,  as  Alexander  Johnston  says,  the 
product  rather  of  frontier  freedom  than  the  result  of 
a  theory  of  state  sovereignty.^  In  1795  also  there  ap- 
peared in  the  "Connecticut  Courant"  a  series  of  arti- 
cles urging  a  separation  of  the  northern  from  the 
southern  States. 

iLalor's  "Cyclopedia  Pol.  Science,"  Article  "Secession." 
61 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

In  September,  1799,  Jefferson  prepared  a  draft  of 
a  reply  which  he  thought  should  be  made  to  the  States 
that  had  repudiated  the  Virginia  and  Kentucky  Reso- 
lutions, in  which  he  said :  ' '  We  are  willing  to  sacrifice 
to  this  [the  Union]  every  thing  but  the  right  of  self- 
government  in  these  important  points  which  we  have 
never  yielded,  in  which  alone  we  see  liberty,  safety, 
and  happiness ;  that  not  at  all  disposed  to  make  every 
measure  of  error  or  of  wrong  a  cause  of  secession,  we 
are  willing  to  look  on  with  indulgence,  and  to  wait 
with  patience,  etc."  At  another  time  he  wrote:  "We 
should  never  think  of  separation  but  for  repeated  and 
enormous  violations."  In  the  above  expressions  the 
rightfulness  of  secession  was  certainly  implied  and 
its  possibility  suggested.  It  is  a  remarkable  fact  also 
that,  in  the  first  two  formal  analyses  of  the  federal 
Constitution  by  lawyers,  it  was  held  that  the  right  of 
secession  had  not  been  abandoned  by  the  individual 
States.  The  first  of  these  analyses  or  commentaries 
was  by  St.  George  Tucker,  an  eminent  judge  in  Vir- 
ginia and  stepfather  of  Randolph  of  Roanoke,  and 
was  published  as  an  appendix  to  the  first  volume  of 
an  edition  of  Blackstone's  Commentaries  which  ap- 
peared in  1803.  After  developing  the  view  that  the 
Constitution  is  a  compact  between  the  States,  he  de- 
clared: "The  Federal  Government,  then,  appears  to 
be  the  organ  through  which  the  United  Republics  com- 
municate with  foreign  nations,  and  with  each  other. 
Their  submission  to  its  operation  is  voluntary;  its 
councils,  its  engagements,  its  authority,  are  theirs, 
modified  and  united.  Its  sovereignty  is  an  emanation 
from  theirs,  not  a  flame  in  which  they  have  been  con- 

62 


SECESSION:    COERCION:    RECONSTRUCTION 

sumed,  nor  a  vortex  in  which  they  are  swallowed  up. 
Each  is  still  a  perfect  State,  still  sovereign,  still  in- 
dependent, and  still  capable,  should  the  occasion  re- 
quire, to  resume  the  exercise  of  its  functions,  as  such, 
in  the  most  unlimited  extent." 

Tucker's  opinions  upon  this  point  were  repeated 
in  1825  by  Rawle  in  his  "View  of  the  Constitution." 
In  that  work  he  said:  "The  States  may  wholly  with- 
draw from  the  Union,  but  while  they  continue  they 
must  retain  the  character  of  representative  repub- 
lics." He  went  on  to  say,  however,  that  this  right 
of  secession  might  only  be  exercised  by  the  "people," 
that  is,  in  constituent  assembly,  and  not  by  the  legis- 
lature, unless  that  body  were  expressly  given  that 
authority  by  the  constitution  of  the  State.  And  he 
added :  ' '  But  in  any  manner  by  which  a  secession  is 
to  take  place,  nothing  is  more  certain  than  that  the  act 
should  be  deliberate,  clear,  and  unequivocal ;  and  in 
such  case  the  previous  ligament  with  the  Union  would 
be  legitimately  destroyed." 

In  1811  Representative  Quincy  declared  upon  the 
floor  of  the  House  that  it  was  his  deliberate  opinion 
that  should  the  bill  providing  for  the  admission  of 
Louisiana  as  a  State  become  a  law,  the  Union  would 
be  virtually  dissolved,  and  that  not  only  would  the 
States  be  thus  released  from  all  moral  obligations,  but 
that  "as  it  will  be  the  right  of  all,  so  it  will  be  the 
duty  of  some  to  prepare  definitely  for  a  separation, 
amicably  if  they  can,  violently  if  they  must."  Dur- 
ing the  operation  of  the  Embargo  Act  and  the  War 
of  1812  there  were  many  threats  of  secession  from 
the  New  England  States,  culminating  in  the  assem- 

63 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

bling  of  the  Hartford  Convention/  In  this  meeting 
the  possibility  of  a  dissolution  of  the  Union  was  dis- 
cussed, and  in  the  report  that  was  made  its  moral 
rightfulness  in  eases  of  extreme  oppression  was  as- 
serted, but  it  does  not  conclusively  appear  either  that 
actual  immediate  secession  was  there  urged,  or  the 
doctrine  declared  that  secession  was  more  than  a 
revolutionary   right. 

In  the  period  from  1838  to  1845  the  opposition  to 
the  proposed  annexation  of  Texas  led  to  declarations 
in  New  England  that  such  an  act  would  justify  se- 
cession; and,  on  the  other  hand,  in  the  South,  the 
threat  "Texas  or  Disunion"  was  frequently  heard. 
From  this  time  on,  threats  of  secession  on  the  part 
of  the  Southern  States  became  increasingly  numer- 
ous, until  in  1861  they  were  finally  attempted  to  be 
put  into  execution. 

From  the  foregoing  paragraphs  it  will  have  ap- 
peared that  the  theory  of  secession,  both  as  a  con- 
stitutional and  as  a  revolutionary  right,  and  actual 
threats  of  its  exercise,  played  a  part  in  the  consti- 
tutional history  of  the  United  States  from  the  first 
years  of  its  existence.  This  important  point  is  to  be 
noticed,  however,  that  in  no  one  instance  did  any 
department  or  public  official  of  the  Federal  Govern- 
ment fail,  in  case  of  threatened  or  actual  conflict  be- 
tween state  and  federal  law  or  authority,  to  assert 
the  supremacy  of  the  Federal  Government.  Jackson, 
himself,  who  did  indeed  refuse  in  one  instance  to  en- 
force a  judgment  of  the  Supreme  Court  of  the  United 
States  in  which  a  law  or  laws  of  the  State  of  Georgia 
had  been  declared  void,  upheld  in  the  most  emphatic 

1  Cf.  von  Hoist,  "Const.  Hist.  U.  S.,"  I,  p.  190  et  seq. 
64 


SECESSION:    COERCION:    RECONSTRUCTION 

manner  the  federal  authority  at  the  time  that  resis- 
tance to  it  was  threatened  by  South  Carolina.  He 
met  the  nullification  ordinance  of  that  State  by  imme- 
diately summoning  General  Scott  and  giving  him 
orders  to  garrison  strongly  Fort  ^loultrie  and  Castle 
Pinckney,  and  have  a  sloop  of  war  and  revenue  cut- 
ters sent  to  Charleston  to  enforce  the  collection  of 
the  duties  levied  by  the  act  which  South  Carolina 
had  declared  null  and  void.  "Proceed  at  once  to 
execute  these  views,"  he  said  to  Scott.  "You  have 
my  carte  hlanche  in  respect  to  troops;  the  vessels 
shall  be  there."  Calhoun  he  threatened  to  hang  as 
high  as  Haman,— a  threat  which  some  historians  have 
asserted  was  not  without  its  influence  upon  that  arch 
exponent  of  nullification.  In  Congress  the  obnox- 
ious tariff  act  was  somewhat  changed,  but  not  so  as 
to  exclude  from  it  those  provisions  which  South 
Carolina  had  declared  rendered  it  unconstitutional, 
and,  furthermore,  upon  the  same  day  that  this  new 
tariff  law  was  passed,  the  so-called  "Force  Bill"  was 
enacted,  giving  to  the  federal  executive  the  amplest 
power  to  execute  federal  laws  within  a  State,  despite 
the  opposition  of  its  people. 

The  Supreme  Court,  guided  by  Taney,  though  giv- 
ing a  strict  interpretation  to  federal  powers  and  a 
liberal  interpretation  to  those  of  the  States,  and 
though  stating  in  some  of  its  opinions  the  doctrine 
that  the  authority  of  the  General  Government  was 
derived  by  gift  from  the  sovereign  States/  emphati- 

1  For  example :  "  The  Constitution  of  the  United  States,  with 
all  the  powers  conferred  by  it  on  the  General  Government,  and 
surrended  by  the  States,  was  the  voluntary  act  of  the  people  of 
the  several  States,  deliberately  done  for  their  own  protection  and 
safety  against  injustice  from  one  another."    Ableman  v.  Booth. 

5  65 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

cally  upheld,  as  we  have  seen,  the  federal  supremacy 
in  Ableman  v.  Booth.  That  Taney  was  no  more  a 
supporter  of  the  secession  doctrine  than  he  was  of 
the  right  of  nullification  we  of  course  know.  He  re- 
mained a  member  of  the  federal  Supreme  Court  until 
his  death  in  1864,  never  questioning  the  constitu- 
tionality of  the  efforts  being  made  by  the  government 
in  whose  service  he  was,  to  overcome  the  resistance 
of  the  seceded  States.  What  his  views  were  regard- 
ing the  legality  of  secession  we  also  know  from  a  let- 
ter written  by  him  to  President  Jackson  relative  to 
the  Hartford  Convention,  in  which  he  said:  "I  am 
free  to  declare,  had  I  commanded  the  military  de- 
partment where  the  Hartford  Convention  met,  if  it 
had  been  the  last  act  of  my  life,  I  should  have  pun- 
ished the  three  principal  leaders  of  that  party.  I  am 
certain  that  an  independent  court  martial  would  have 
condemned  them."  Even  the  unfortunate  position 
which  he  and  his  colleagues  took  in  the  Dred  Scott 
case,  is  to  be  interpreted  as  born  of  a  belief  that  thus 
might  be  settled  once  for  all  the  controversy  which 
was  seen  to  be  threatening  the  dissolution  of  the  Union. 
Considered,  then,  simply  from  the  constitutional 
standpoint,  it  would  appear  that  in  alleging  in  1861 
a  right  of  secession  the  statesmen  of  the  southern 
States  advanced  a  theory  that  the  events  of  preceding 
years  had  rendered  untenable,  if,  indeed,  it  had  ever 
j  been  tenable.  So  often  and  so  emphatically  had  the 
(supremacy  of  the  United  States  over  its  members 
/been  demonstrated,  that,  whatever  may  have  been  the 
'  fact  in  1789,  it  was  then  no  longer  an  open  consti- 
tutional question. 

66 


SECESSION:    COERCION:    RECONSTRUCTION 

When,  however,  from  the  purely  political  phase 
of  the  question  we  turn  to  a  consideration  of  its  ethi- 
cal aspects,  the  solution  is  not  so  evident. 

The  moral  right  of  an  aggregate  of  people  consti- 
tuting a  part  of  the  citizen  body  of  a  State  to  with- 
draw themselves,  and  the  territory  that  they  inhabit, 
from  beneath  the  sovereignty  of  that  State  is  one  the 
existence  of  which  is  to  be  determined  by  the  ultimate 
result  to  which  such  an  act  will  lead.  No  body  of  in- 
dividuals has  an  abstract,  that  is,  an  absolute  right, 
to  an  independent  political  existence.  However,  as 
the  author  has  had  occasion  to  say  in  another  place :  ^ 
"There  is  an  exceedingly  strong  presumption  not 
only  that  a  given  people  best  knows  its  own  interests 
and  the  means  of  advancing  them,  but  that,  stimulated 
by  the  consciousness  of  national  independence,  it  will 
develop  its  latent  potentialities  in  a  manner  that  it 
will  not,  or  cannot,  do  when  subjected  to  an  alien 
authority.  But  this  presumption,  however  strong,  is 
one  that  may  be  rebutted.  .  .  .  The  interests  of  civili- 
zation are  superior  to  those  of  any  particular  people. 
Judged  from  this  general  standpoint  it  may,  there- 
fore, often  happen  that  the  forcible  subjection  of  one 
people  to  the  political  rule  of  another  is  justified." 

Patriotism,  when  a  rationally  grounded,  ethical 
sentiment,  implies  a  confident  belief  upon  the  part 
of  those  who  entertain  it,  that  the  best  interests  of 
the  world  are  to  be  subserved  by  supporting  the  State 
to  which  their  allegiance  is  given.  It  is  the  writer's 
own  opinion  that,  at  the  time  of  the  adoption  of  the 
Constitution,  there  existed  such  a  strong  belief  in  the 
1  Article  "Government,"  "Encyclopedia  Americana." 
67 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

necessity  for,  and  beneficence  of,  a  Union  that  should 
embrace  all  of  the  American  States,  that,  had  one  or 
two,  or  possibly  three  of  the  then  sovereign  States 
refused  to  come  into  the  Union,  or,  having  come  in, 
had  attempted  to  withdraw,  the  citizens  of  the  other 
States  would  have  felt  themselves  morally  justified 
in  supporting  the  National  Government  in  an  attempt 
to  coerce  the  recalcitrant  or  seceding  States  in  be- 
coming or  remaining  members  of  the  Union.  Thus 
it  is  quite  certain  that,  had  Rhode  Island  persisted 
in  her  refusal  to  join  with  her  sister  States,  she  would 
have  been  coerced  into  doing  so.  If,  however,  early 
in  its  existence,  the  new  Nation  had  been  called  upon 
to  meet  the  secession  of  a  whole  section  of  her  terri- 
tory, embracing  a  comparatively  considerable  number 
of  her  commonwealth  members,  it  is  by  no  means 
certain  that  either  an  attempt  would  have  been  made 
to  prevent  it,  or,  indeed,  that  it  would  then  have  been 
the  general  opinion  that  it  would  be  morally  right 
to  prevent  it.^  In  1861,  however,  conditions  were 
quite  different.     During  the  seventy-two  years  since 

1  "  That  ever,  at  any  period  of  our  history  since  1790,  a  single 
State— no  matter  how  sovereign,  even  Virginia— could  alone  have 
made  good,  peaceably  or  otherwise,  a  withdrawal  in  face  of  her 
unitedly  disapproving  sister  States,  I  do  not  believe.  .  .  .  But 
how  would  it  have  been  at  any  given  time  with  a  combination 
of  States,  acting  in  sympathy, —a  combination  proportionately 
as  considerable  when  measured  with  the  whole  as  was  the  Con- 
federacy in  1861?  I  hold  that  here  again  it  was  merely  a  ques- 
tion of  time,  and  that  such  a  withdrawal  as  then  took  place 
would  never  have  failed  of  success  at  any  anterior  period  in  our 
national  history."  Charles  Francis  Adams  in  an  address  entitled 
"  The  Constitutional  Ethics  of  Secession,"  delivered  at  Charleston, 
S.  C,  December  22,  1902. 

68 


SECESSION:    COERCION:    RECONSTRUCTION 

1789,  not  only  had  the  National  Government  greatly- 
increased  in  power  as  compared  with  the  individual 
States,  but  the  sentiment  of  nationality  had  grown 
greatly  in  strength  in  the  northern  and  northwestern 
States.  In  the  southern  States,  however,  it  had  made 
little  progress.  When,  therefore,  in  1861,  with  the 
withdrawal  from  the  Union  of  the  eleven  southern 
States,  it  became  necessary  to  decide  once  for  all 
whether  secession  was  justifiable,  it  was  but  natural 
that  the  two  sections  should  not  agree. ^  In  the  north- 
ern States  the  people  generally  gave  their  primary 
allegiance  to  the  Nation.  They  therefore  held  as 
morally  unjustifiable  any  attempt  to  disrupt  it.  In 
the  southern  States,  allegiance  to  the  individual  State 
was  paramount.  The  people  of  that  section,  there- 
fore, were  convinced  of  the  immorality  of  any  at- 

1  The  question  as  to  the  side  upon  which  lay  the  preponderance 
of  moral  right  in  the  Civil  War  is  of  course  complicated  by  the 
element  of  slavery.  An  examination  of  the  much-disputed  point 
as  to  the  extent  to  which  this  element  entered  as  a  factor  in  this 
struggle  will  not  be  possible  here.  It  may  be  said,  however, 
that  the  people  of  the  seceding  States  have  uniformly  taken  the 
ground  that  with  them  it  was  not  primarily  for  the  perpetuation 
of  slavery,  but  for  the  preservation  of  states'  rights  that  they 
strove.  Upon  the  other  hand  it  is  quite  incontestable  that  it 
was  the  disputes  that  had  been  had  regarding  slavery,  and  the 
fear  of  possible  future  attacks  upon  that  institution,  that  led  the 
men  of  the  South  to  put  into  execution  that  right  of  secession 
which  they  claimed  as  a  matter  of  constitutional  and  moral  right 
to  possess  ;  and,  furthermore,  that  upon  the  part  of  the  people  of 
the  North  the  purpose,  at  the  beginning  of  the  war,  of  restrain- 
ing the  further  spread  of  slavery,  and  later,  of  absolutely  de- 
stroying it,  furnished  to  them  an  additional  moral  reason  for 
maintaining  unimpaired  the  Union. 

69 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tempt  to  compel  their  commonwealths,  against  their 
wills,  to  remain  members  of  a  superior  National 
State.  Each,  therefore,  felt  justified  in  resisting 
the  other's  demands.  Both  felt  that  the  Civil 
War  was  fought  to  maintain  that  sovereignty  which 
they  respectively  believed  morally  entitled  to  their 
obedience. 

At  the  time  that  the  disaffection  of  the  Southern 
States  ripened  into  open  rebellion  against  the  Union 
Buchanan  was  President.  He  asked  the  opinion  of 
his  Attorney-General,  J.  S.  Black,  as  to  his  authority 
to  employ  armed  force  to  compel  the  Southern  States 
to  return  to  their  allegiance  to  the  Union  and  obe- 
dience to  its  laws.  Black  advised  him  that,  according 
to  the  Constitution  and  existing  federal  statutes,  the 
President  had  the  right  to  employ  armed  force  only 
in  a  defensive  way  to  protect  property  belonging  to 
the  General  Government,  or  as  a  means  for  aiding 
the  federal  courts  in  obtaining  the  execution  of  their 
decrees.  When  there  were  no  federal  courts  to  issue 
judgments  and  federal  officials  to  execute  them,  he 
maintained  a  use  of  military  force  would  be  illegal. 
"Without  the  exercise  of  those  functions  which  be- 
long exclusively  to  the  civil  service,  the  laws  cannot 
be  executed  in  any  event,  no  matter  what  may  be 
the  physical  strength  which  the  government  has  at 
its  command,"  he  declared.  "Under  such  circum- 
stances, to  send  a  military  force  into  any  State  with 
orders  to  act  against  the  people,  would  be  simply 
making  war  upon  them.  The  existing  laws  put  and 
keep  the  Federal  Government  strictly  upon  the  de- 
fensive.   You  may  use  force  only  to  repel  an  assault 

70 


SECESSION:    COERCION:    RECONSTRUCTION 

on  the  public  property  and  aid  the  courts  in  the  per- 
formance of  their  duty." 

In  his  annual  message  of  December  3,  1860,  Bu- 
chanan denied  the  constitutional  right  of  the  States 
to  withdraw  from  the  Union.  "Such  a  principle," 
he  declared,  "is  wholly  inconsistent  with  the  history 
as  well  as  the  character  of  the  Federal  Constitution. 
.  .  .  Secession  is  neither  more  nor  less  than  revolution. 
It  may  or  may  not  be  a  justifiable  revolution,  but  still 
it  is  revolution." 

When,  however,  from  the  constitutional  theory  that 
the  individual  States  had  no  constitutional  right  to 
secede,  Buchanan  turned  to  the  question  as  to  the 
means  that  he  might  legally  employ  to  bring  them  back 
to  an  obedience  to  federal  authority,  he,  following  the 
opinion  of  his  Attorney-General,  declared  that  he 
was  not  authorized  to  use  armed  force  for  that  pur- 
pose. As  President  of  the  United  States  he  of 
course  held  himself  bound  "to  take  care  that  the  laws 
be  faithfully  executed."  "But  what,"  he  asked,  "if 
the  performance  of  this  duty,  in  whole  or  in  part,  has 
been  rendered  impracticable  by  events  over  which  he 
could  have  exercised  no  control  1  Such  at  the  present 
moment  is  the  case  throughout  the  State  of  South 
Carolina  so  far  as  the  laws  of  the  United  States  to 
secure  the  administration  of  justice  by  means  of  the 
federal  judiciary  are  concerned.  All  the  federal  offi- 
cers within  its  limits  through  whose  agency  alone 
these  laws  can  be  carried  into  execution  have  already 
resigned.  We  no  longer  have  a  district  judge,  a  dis- 
trict attorney,  or  a  marshal  in  South  Carolina.  In 
fact,  the  whole  machinery  of  the  Federal   Govcrn- 

71 


THE  AMERICAN  CONSTITUTIONAL   SYSTEM 

ment  necessary  for  the  distribution  of  remedial  jus- 
tice among  the  people  has  been  demolished,  and  it 
would  be  difficult,  if  not  impossible,  to  replace  it." 
After  going  on  to  state  that,  under  existing  laws  of 
Congress,  he  had  the  power  to  use  the  militia  and 
employ  the  army  and  navy  only  as  a  posse  comitatus 
to  aid  the  courts,  and  after  asserting  that  "this  duty 
cannot  by  possibility  be  performed  in  a  State  where 
no  judicial  authority  exists  to  issue  process,  and  where 
there  is  no  marshal  to  execute  it,  and  where,  even  if 
there  were  such  officers,  the  entire  population  would 
constitute  one  solid  combination  to  resist  him,"  Bu- 
chanan said:  "The  question  fairly  stated  is,  Has  the 
Constitution  delegated  to  Congress  the  power  to 
coerce  a  State  into  submission  which  is  attempting 
to  withdraw  or  has  actually  withdrawn  from  the  Con- 
federacy? If  answered  in  the  affirmative,  it  must  be 
on  the  principle  that  the  power  has  been  conferred 
upon  Congress  to  declare  and  to  make  war  upon  a 
State.  After  much  anxious  reflection  I  have  arrived 
at  the  conclusion  that  no  such  power  has  been  dele- 
gated to  Congress  or  to  any  other  department  of  the 
Federal  Government.  It  is  manifest  upon  an  in- 
spection of  the  Constitution  that  this  is  not  among 
the  specific  and  enumerated  powers  granted  to  Con- 
gress, and  it  is  equally  apparent  that  its  exercise  is 
not  'necessary  and  proper  for  carrying  into  execution' 
any  of  these  powers.  So  far  from  this  power  having 
been  delegated  to  Congress,  it  was  expressly  refused 
by  the  Convention  which  framed  the  Constitution. 
It  appears  from  the  proceedings  of  that  body  that  on 
the  31st  May,  1787,  the  clause  'authorizing  an  exer- 

72 


SECESSION:    COERCION:    RECONSTRUCTION 

tion  of  the  force  of  the  whole  against  a  delinquent 
State'  came  up  for  consideration.  Mr.  Madison  op- 
posed it  in  a  brief  but  powerful  speech,  from  which 
I  shall  extract  but  a  single  sentence.  He  observed: 
'The  use  of  force  against  a  State  w^ould  look  more 
like  a  declaration  of  war  than  an  infliction  of  pun- 
ishment, and  would  probably  be  considered  by  the 
party  attacked  as  a  dissolution  of  all  previous  com- 
pacts, by  which  it  might  be  bound.'  Upon  his 
motion  the  clause  was  unanimously  postponed,  and 
was  never,  1  believe,  again  presented.  Soon  after- 
ward, on  the  8th  June,  1787,  when  incidentally  advert- 
ing to  the  subject,  he  said:  'Any  government  for  the 
United  States  formed  on  the  supposed  practicability 
of  using  force  against  the  unconstitutional  proceed- 
ings of  the  States  would  prove  as  visionary  and  fal- 
lacious as  the  government  of  Congress,'  evidently 
meaning  the  then  existing  Congress  of  the  old  Confed- 
eration. Without  descending  to  particulars,  it  may  be 
safely  asserted  that  the  power  to  make  war  against  a 
State  is  at  variance  with  the  whole  spirit  and  intent 
of  the  Constitution.  Suppose  such  a  war  should  re- 
sult in  the  conquest  of  a  State ;  how  are  we  to  govern 
it  afterward?  Shall  we  hold  it  as  a  province  and 
govern  it  as  by  despotic  power?  In  the  nature  of 
things  we  could  not  by  physical  force  control  the 
will  of  the  people  and  compel  them  to  elect  Senators 
and  Representatives  to  Congress  and  to  perform  all 
the  other  duties  depending  upon  their  own  volition 
and  required  from  the  free  citizens  of  a  free  State 
as  a  constituent  member  of  the  Confederacy.  .  .  . 
The  fact  is  that  our  Union  rests  upon  public  opinion, 

73 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

and  can  never  be  cemented  by  the  blood  of  its  citi- 
zens shed  in  civ.il  war.  .  .  .  Congress  possesses  many 
means  of  preserving  it  by  conciliation,  but  the  sword 
was  not  placed  in  its  hand  to  preserve  it  by  force." 

The  foregoing  reasoning  of  Buchanan  was  defec- 
tive in  the  following  respects :  In  the  first  place,  the 
interpretation  given  to  the  proceedings  of  the  Consti- 
tutional Convention  of  1787  and  to  the  remarks  of 
Madison  was  not  a  correct  one.  As  a  matter  of  fact, 
as  the  report  of  the  proceedings  of  the  Convention 
shows,  the  grant  to  the  General  Government  of  an 
express  power  to  coerce  recalcitrant  States  was  finally 
abandoned,  not  because  it  was  held,  as  Buchanan  de- 
clared, that  it  would  be  improper  and  inexpedient  to 
vest  such  a  power  in  the  Central  Government  of  a 
federal  state,  but  because  it  was  demonstrated  by 
Sherman,  Mason,  and  Madison,  that  such  a  grant  was 
unnecessary  in  that,  in  the  first  place,  the  federal  ju- 
diciary was  given  full  authority  to  declare  void  all 
unconstitutional  acts  of  the  States;  and,  in  the  sec- 
ond place,  that,  should  there  be  a  refusal  of  obedi- 
ence to  federal  laws,  or  to  the  decisions  of  the  courts, 
the  coercion  that  would  have  to  be  applied  would  be 
directed  against  individuals  and  not  against  the 
States  in  which  they  lived  or  of  which  they  might  be 
citizens.  Thus  Ellsworth  in  the  convention  of  his 
State,  speaking  with  reference  to  this  point,  after 
asserting  that  coercive  power  should  be  possessed  by 
the  Central  Government,  went  on  to  say:  "The  only 
question  is,  shall  it  be  a  coercion  of  law,  or  a  coercion 
of  arms?  There  is  no  other  possible  alternative. 
Where  will  those  who  oppose  a  coercion  of  law  come 

74 


SECESSION:    COERCION:    RECONSTRUCTION 


out;  where  will  they  end?  A  necessary  consequence 
of  their  principles  is  a  war  of  the  States,  one  against 
the  other.  I  am  for  coercion  of  law — a  coercion 
which  acts  only  upon  delinquent  individuals.  The 
Constitution  does  not  attempt  to  coerce  sovereign 
bodies— States  in  their  political  capacity.  No  coer- 
cion is  applicable  to  such  parties  but  that  of  an 
armed  force.  If  we  should  attempt  to  execute  the 
laws  of  the  Union  by  sending  an  armed  force  against 
a  delinquent  State  it  would  involve  the  good  and  the 
bad,  the  innocent  and  guilty  in  the  same  calamity. 
But  this  legal  coercion  singles  out  the  guilty  indi- 
vidual and  punishes  him  for  breaking  the  laws  of  the 
Union." 

To  repeat,  then,  the  proceedings  of  the  Convention 
that  formed,  and  of  the  Conventions  that  ratified,  the 
Constitution,  make  it  abundantly  evident  that  it  was 
intended  that  the  new  government  should  have  full 
coercive  authority  in  the  matter  of  compelling  obe- 
dience to  its  laws.  It  was  not  intended  that  the  new 
government  should  have,  and  it  was  not  believed  that 
it  did  have,  any  authority  to  declare  a  State  delin- 
quent as  a  State,  and  to  proceed  against  it  as  such  by 
force;  but  it  was  intended  that  any  or  all  of  its  citi- 
zens who  might  refuse  obedience  to  federal  law  should 
be  subject  to  such  coercion  as  the  General  Government 
might  see  fit  to  apply,  and  be  liable  to  such  punish- 
ments as  the  laws  of  that  government  might  impose. 
In  other  words,  the  fact  was  plainly  seen  at  the 
time  of  the  establishment  of  our  National  Government 
that  in  a  Federal  State,  as  distinguished  from  a  mere 
Confederacy,   by  no   possibility  can  a  condition   of 

75 


THE   AMERICAN   CONSTITUTIONAL    SYSTEM 

affairs  arise  in  which  it  will  be  necessary  or  proper 
for  the  central  power  to  employ  force  against  one  of 
its  constituent  Commonwealths  as  a  political  body. 
In  a  Confederacy,  composed  as  it  is  of  sovereign 
States,  united  with  one  another  by  a  common  treaty 
bond,  the  constituent  States  may  as  such  resist  the 
operation  of  general  laws,  and  in  such  cases  the  coer- 
cion to  be  applied  will  properly  be  directed  against 
them  as  States,  and  not  against  their  citizens  as  in- 
dividual violators  of  law.  But  in  a  sovereign  Fed- 
eral State  the  individual  Commonwealths,  as  having 
a  political  status  only  as  members  of  the  Union, 
have  not  the  legal  power  to  place  themselves,  as 
political  bodies,  in  opposition  to  the  national  will. 
Their  legislatures,  their  courts,  or  their  executive  offi- 
cials may  attempt  acts  unwarranted  by  the  federal 
Constitution  or  federal  law,  and  they  may  even 
command  that  their  citizens  generally  shall  refuse 
obedience  to  some  specified  federal  laws,  or  to  the 
federal  authorities  generally,  but  in  all  such  cases, 
such  acts  are,  legally  viewed,  simply  void,  and 
all  individuals  obeying  them  subject  to  punishment 
as  offenders  against  national  law.  The  fact  that  their 
respective  States  have  directed  them  to  refuse  obe- 
dience or  to  offer  resistance  to  the  execution  of  the 
federal  laws  can  afford  them  no  immunity  from  pun- 
ishment, for  no  one  can  shelter  himself  behind  an 
unconstitutional  law,  such  a  law,  being,  in  truth,  as 
we  have  seen,  not  a  law  at  all,  but  only  an  unsuccess- 
ful attempt  at  a  law. 

From  the  foregoing,  then,  it  must  appear  that  Bu- 
chanan,   in    his    annual    message    to    Congress,    was 

76 


SECESSION:    COERCION:    RECONSTRUCTION 

guilty  of  an  ignoratio  elenchi.  The  real  problem  by 
which  he  was  confronted,  was  not  whether  or  not  he 
should  employ  the  armed  force  of  the  Union  against 
recalcitrant  States,  but  whether  or  not  he  should  en- 
force federal  laws  within  such  States  against  any  re- 
sistance that  individuals  might  offer.  As  a  matter  of 
fact,  indeed,  at  the  time  that  this  message  was  pre- 
pared and  transmitted  to  Congress,  no  State  had 
actually  seceded,  and  it  was  not  until  December  20, 
that  the  first  ordinance  of  secession— by  South  Caro- 
lina—was adopted.  Preparations  for  secession  had, 
however,  begun,  and  the  Southerners  had  already 
taken  the  position  that  any  attempt  on  the  part  of 
the  National  Government  to  strengthen  its  position 
in  Fort  Moultrie  would  be  construed  as  equivalent  to 
an  act  of  coercion  against  South  Carolina. 

For  a  time  Buchanan  negotiated  with  the  Commis- 
sioners sent  by  the  State  of  South  Carolina,  and  even 
prepared  an  answer  to  their  demands  which  by  its 
terms  and  form  seemed  to  imply  that  South  Caro- 
lina had  put  itself  in  a  position  that  would  enable  the 
President  to  negotiate  or  "treat"  with  her  as  with  a 
foreign  power.  Attorney-General  Black  strongly  ob- 
jected to  this  as  practically  implying  that  a  State 
might,  by  its  own  act,  place  itself  outside  of  the 
Union.  He  thereupon  sent  to  the  President  a  memo- 
randum in  which  he  said:  "I  think  that  every  word 
and  sentence  which  implies  that  South  Carolina  is  in 
an  attitude  which  enables  the  President  to  'treat'  or 
negotiate  with  her,  or  to  receive  her  commissioners  in 
the  character  of  diplomatic  ministers  or  agents, 
ought  to  be  stricken  out,  and  an  explicit  declaration 

77 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

substituted  which  would  reassert  the  principles  of  the 
message.  .  .  .  Above  all  things  it  is  objectionable  to 
intimate  a  willingness  to  negotiate  with  the  State  of 
South  Carolina  about  the  possession  of  a  military 
post  which  belongs  to  the  United  States.  The  words 
'coercing  a  State  by  force  of  arms  to  remain  in  the 
Confederacy,  a  power  which  I  do  not  believe  the 
Constitution  has  conferred  on  Congress,'  ought  cer- 
tainly not  to  be  retained.  They  are  too  vague  and 
might  have  the  effect  (which  I  am  sure  the  President 
does  not  intend)  to  mislead  the  Commissioners  con- 
cerning his  sentiments.  The  power  to  defend  the 
public  property,  to  resist  an  assailing  force  which 
unlawfully  attempts  to  drive  out  the  troops  of  the 
United  States  from  one  of  our  fortifications,  and  to 
use  military  and  naval  forces  for  the  purpose  of  aid- 
ing the  proper  officers  of  the  United  States  in  the  exe- 
cution of  the  laws— this,  as  far  as  it  goes,  is  coercion, 
and  may  very  well  be  called  'coercing  a  State  by 
force  of  arms  to  remain  in  the  Union. '  The  President 
has  always  asserted  his  right  of  coercion  to  that  ex- 
tent. He  merely  denies  the  right  of  Congress  to 
make  offensive  war  upon  a  State  of  the  Union  as  such 
might  be  made  upon  a  foreign  government." 

Buchanan  modified  his  answer  to  the  Commissioners 
of  South  Carolina  according  to  these  suggestions, 
whereupon  they  returned  an  angry  answer.  Upon 
receiving  this  Buchanan  said:  "It  is  now  all  over, 
and  reinforcements  must  be  sent." 

This  was  practically  the  situation  at  the  time  that 
Lincoln  became  President.  In  his  inaugural  message 
he  assumed   the   correct   constitutional   position  that 

78 


SECESSION:    COERCION:    RECONSTRUCTION 

the  Federal  Government  could  not  wage  public  war 
against  a  State,  not  because  of  a  lack  of  consti- 
tutional authority  to  maintain  in  every  respect  its 
supremacy,  but  because,  from  the  very  nature  of  the 
Union,  a  State,  qua  State,  could  not  place  itself  in  a 
position  where  coercion  could  be  applied  to  it. 

After  an  argument  tending  to  show  the  sovereign 
character  of  the  Union,  and  that  it  was  intended  to 
be  perpetual,  he  declared :  "It  follows  from  these 
views  that  no  State  upon  its  own  mere  motion  can 
lawfully  get  out  of  the  Union ;  that  resolves  and  ordi- 
nances  to  that  effect  are  legally  void,  and  that  acts 
of  violence  within  any  State  or  States  against  the 
authority  of  the  United  States  ai-e  insurrectionary 
or  revolutionary,  according  to  circinnstances.  I  there- 
fore consider  that,  in  view  of  the  Constitution  and 
the  laws,  the  Union  is  unbroken,  and  to  the  extent 
of  my  ability  I  shall  take  care,  as  the  Constitution 
itself  expressly  enjoins  upon  me,  that  the  laws  of  the 
Union  be  faithfully  executed  in  all  the  States.  .  .  . 
In  doing  this  there  needs  to  be  no  bloodshed  or  vio- 
lence, and  there  shall  be  none  unless  it  be  forced  upon 
the  national  authority.  The  power  conferred  upon 
me  will  be  used  to  hold,  occupy,  and  possess  the 
property  and  places  belonging  to  the  Government 
and  to  collect  the  duty  and  imposts;  but  beyond  what 
may  be  necessary  for  these  objects,  there  will  be  no 
invasion,  no  using  of  force  against  or  among  the  peo- 
ple anywhere." 

In  taking  this  position,  Lincoln  had  to  treat  the  war 
that  had  begun  as  merely  an  insurrection  in  which 
the  coercion  and  punishments  were  to  be  applied  to 

79 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

individuals.  Thus  he  began  his  Proclamation  of 
April  15,  1861,  in  which  he  called  for  seventy-five 
thousand  of  the  militia  of  the  States,  by  saying: 
''Whereas  the  laws  of  the  United  States  have  been  for 
some  time  past  and  now  are  opposed  and  the  execu- 
tion thereof  obstructed  in  the  States  of  South  Caro- 
lina, Georgia,  Alabama,  Florida,  Mississippi,  Loui- 
siana, and  Texas,  by  combinations  too  powerful  to  be 
suppressed  by  the  ordinary  course  of  judicial  pro- 
ceedings;" and  closed  by  commanding  "the  persons 
composing  the  combinations  aforesaid  to  disperse  and 
retire  peaceably  to  their  respective  abodes  within 
twenty  days  from  this  date." 

As  further  showing  the  theory  as  to  the  nature  of 
the  contest  that  was  held  by  the  National  Government 
is  the  fact  that  Congress  did  not  "declare  war" 
against  the  South,  or,  when  the  struggle  was  over, 
enter  into  a  treaty  of  peace  with  the  Southern  Con- 
federacy. It  never  once  recognized  that  that  govern- 
ment had  or  could  have  a  de  jure  standing  as  a  politi- 
cal power  with  which  it  might  deal  as  with  a  foreign 
State.  One  after  another,  the  surrender  of  his  forces 
by  each  Confederate  general  was  accepted  as  an  act 
of  war  and  thus  the  Confederacy  left  to  collapse  and 
disappear  without  any  formal,  official  act  to  mark  its 
demise. 

Though  the  United  States  Government  did  not,  and, 
constitutionally,  could  not,  recognize  the  Southern 
Confederacy  as  a  foreign  power,  it  was  almost  imme- 
diately obliged,  by  the  magnitude  of  the  struggle,  to 
treat  the  Southerners  as  belligerents  and  to  conduct 
the  struggle  as  a  public  war  and  not  as  a  mere  con- 

80 


SECESSION:   COERCION:    RECONSTRUCTION 


test  against  violators  of  its  municipal  laws.  Thus, 
only  four  days  after  the  first  call  for  troops,  Lincoln, 
in  declaring  a  blockade  of  the  Southern  ports,  exer- 
cised an  authority  that,  from  the  standpoint  both  of 
constitutional  and  of  International  Law  was  exercis- 
able only  in  time  of  war.  The  so-called  Confiscation 
Acts,  providing  for  the  confiscation  of  the  property 
of  those  who  aided  the  rebellion  were  conspicuous 
instances  of  the  exercise  on  the  part  of  the  Federal 
Government  of  powers  as  a  belligerent  which  it  could 
not,  constitutionally,  have  exercised  simply  as  a  sov- 
ereign. The  title  itself  of  the  Confiscation  Act  of 
July  17,  1862,  "An  act  to  punish  treason  and  con- 
fiscate the  property  of  rebels,"  showed  the  doable 
character  of  the  claim  of  authority  assumed  by  Con- 
gress. 

This  status  of  the  Confederates  as  Belligerents  was 
later  recognized  by  the  United  States  Supreme  Court. 
In  Ford  v.  Surget  (97  U.  S.,  594)  that  Court  said: 
' '  To  the  Confederate  government  was  conceded,  in  the 
interest  of  humanity,  and  to  prevent  the  cruelties  of 
reprisals  and  retaliation,  such  belligerent  rights  as 
belonged,  under  the  law  of  nations,  to  armies  of  in- 
dependent governments  engaged  in  war  against  each 
other.  .  .  .  The  Confederate  States  were  belligerents 
in  the  sense  attached  to  that  word  by  the  law  of 
nations. ' ' 

In  a  Proclamation  of  August  16,  1861,  empowered 
so  to  do  by  the  Act  of  Congress  of  July  13,  1861,  the 
President  in  effect  declared  the  war  to  be  a  territorial 
one.  He  declared  that  all  the  inhabitants  of  given 
districts,  irrespective  of  the  actual  conduct  of  each, 
6  81 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

should  be  considered  and  treated  as  enemies  to  the 
Union.  "Whereas,"  said  the  President,  "the  insur- 
gents in  all  the  said  States  claim  to  act  under  the  au- 
thority thereof,  and  such  claim  is  not  disclaimed  or 
repudiated  by  the  persons  exercising  the  functions  of 
government  in  such  State  or  States  or  in  the  part  or 
parts  thereof  in  which  such  combinations  exist,  nor 
has  such  insurrection  been  suppressed  by  said  States, 
now,  therefore,  I  .  .  .  declare  that  the  inhabitants 
of  the  said  States  .  .  .  are  in  a  state  of  insurrection 
against  the  United  States."  The  Proclamation  then 
went  on  to  prohibit  all  commercial  intercourse  with 
the  inhabitants  of  those  districts. 

The  Confederates  having  been  recognized  as  pub- 
lic armed  enemies,  the  question  soon  arose  as  to  whe- 
ther Congress,  while  treating  them  as  such  in  some 
matters,  might  also  treat  them  as  citizens  or  subjects 
as  to  others.  In  other  words,  whether  the  government 
of  the  United  States  might  exercise  the  rights  and 
secure  for  itself  the  advantages  flowing  from  both 
positions.  For  example,  might  it  properly  treat  Con- 
federate property  as  contraband  of  war,  and  at  the 
same  time  hang  its  owners,  when  captured,  as  guilty 
of  treason  against  itself? 

The  Federal  Government,  by  its  acts,  showed  almost 
immediately  that  it  held  that  an  affirmative  answer 
might  be  given  to  this  question.  In  his  Proclamation 
of  April  19,  establishing  the  blockade  of  the  Southern 
ports,  Lincoln  declared  that  he  would  hold  amenable 
to  the  laws  of  the  United  States  for  the  prevention 
and  punishment  of  piracy,  any  person  who  "under 
the  pretended  authority  of  the  said  States  or  under 

82 


SECESSION:    COERCION:    RECONSTRUCTION 

any  other  pretense,"  should  "molest  a  vessel  of  the 
United  States  or  the  persons  or  cargo  on  board  of 
her."  Some  few  captured  Confederates  were  in  fact 
tried  and  convicted  in  pursuance  of  this  threat,  but 
were  not  executed,  Jefferson  Davis,  the  President  of 
the  Confederacy,  having  threatened  that,  should  they 
be  hanged,  a  like  penalty  would  be  inflicted  upon  an 
equal  number  of  captured  Federals.  By  numerous 
other  acts,  the  Federal  Government  took  constant 
pains  throughout  the  war  to  make  it  perfectly  plain 
to  all  that  it  continued  to  regard  the  seceded  States 
as  members  of  the  Union,  and  its  inhabitants  as  its 
citizens.  Thus  those  States  were  called  upon  to  fur- 
nish their  respective  quotas  of  militia,  the  direct  taxes 
were  apportioned  among  them  according  to  their 
populations  as  the  federal  Constitution  required,  and, 
later,  their  votes  counted  in  the  ratification  of  the 
thirteenth,  fourteenth,  and  fifteenth  amendments.^ 
Furthermore,  the  acts  of  the  legislatures  of  the  seceded 
States,  passed  during  the  years  1861  to  18G5,  in  so  far 
as  they  had  not  a  treasonable  aim  or  effect,  were  recog- 
nized by  the  federal  courts  as  valid  and  were  as  such 
enforced.  Thus  in  Williams  v.  Bruffy  (96  U.  S.,  176) 
Justice  Field  declared  without  dissent  from  any  of 
his  colleagues:  "While  holding  that  there  was  no  va- 
lidity in  any  legislation  of  the  Confederate  States 
which  this  Court  can  recognize,  it  is  proper  to  observe 
that  the  legislation  of  these  States  stands  on  very  dif- 
ferent grounds.  ...  As  far  as  the  acts  of  the  States 

1  The  difficulty  which  the  Federal  Government  had  in  Recon- 
struction times  in  maintaining  consistently  this  position  will  be 
later  adverted  to. 

83 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

did  not  impair  or  tend  to  impair  the  supremacy  of 
the  national  authority,  or  the  just  rights  of  citizens 
under  the  Constitution,  they  are,  in  general,  to  be 
treated  as  valid  and  binding."  It  will  be  observed 
that  in  the  above  care  was  taken  to  declare  that  under 
no  circumstances  could  a  legal  validity  be  ascribed  by 
the  Federal  Government  to  the  acts  of  the  Central 
Government  of  the  Confederacy.  The  continued  ex- 
istence of  the  Southern  States  as  States  of  the  Union 
it  did  recognize,  and,  indeed,  according  to  the  theories 
upon  which  the  war  was  waged,  felt  itself  bound  to 
recognize,  and  therefore,  their  acts,  so  far  as  constitu- 
tional, it  had  to  accept  as  valid ;  but  the  Confederacy 
it  could  not  recognize  as  being  a  government  with  the 
power  to  issue  commands  that  it  could  receive  as  laws, 
for  it  denied  the  legal  competence  of  the  individual 
States  to  create  such  a  political  being. 

So  far  as  International  Law  is  concerned  it  would 
seem  that  a  sovereign  State  struggling  to  suppress  an 
insurrection  against  itself,  may  assume  both  of  Ihese 
positions  and  exercise  the  rights  flowing  therefrom. 
When  we  come,  however,  to  the  constitutionality  of 
the  exercise  by  the  Federal  Government  of  these  bel- 
ligerent rights  at  the  same  time  that  it  was  maintain- 
ing its  position  as  sovereign,  we  find  the  legality  of 
the  acts  of  the  Federal  Government  not  so  readily 
conceded.  Upon  the  floors  of  Congress  as  well  as  in 
the  press,  the  debates  were  extremely  bitter.  The 
whole  question  finally  came  up  for  judicial  settlement 
in  the  so-called  Prize  Cases  (2  Black,  635)  and  the 
case  of  Mrs.  Alexander's  Cotton  (2  Wall.,  404).  In 
these  cases  the  constitutionality  of  the  acts  of  Congress 

84 


SECESSION:    COERCION:    RECONSTRUCTION 

was  squarely  upheld.  In  the  opinion  rendered  in  the 
lower  court,  the  correctness  of  which  was  affirmed  by 
the  Supreme  Court,  Judge  Sprague  declared:  "Some 
have  apprehended  that  if  the  conflict  of  arms  is  to  be 
deemed  war,  our  enemies  must  have,  against  the  gov- 
ernment, all  the  immunities  of  belligerents.  But  this 
is  to  overlook  the  double  character  which  these  ene- 
mies sustain.  They  are  at  the  same  time  belligerents 
and  traitors,  and  subject  to  the  liabilities  of  both. 
These  rights  coexist  and  may  be  exercised  at  pleasure. 
.  .  .  Civil  war,  ex  vi  termini,  imports  that  sovereign 
rights  are  nDt  relinquished,  but  insisted  on.  The  war 
is  waged  to  maintain  them."  In  affirming  the  de- 
cisions and  accepting  the  reasoning  of  the  lower 
courts  in  the  Prize  Cases  the  Supreme  Court  of  the 
United  States  declared:  "It  is  a  proposition  never 
doubted  that  the  belligerent  party  who  claims  to  be 
sovereign  may  exercise  both  belligerent  and  sovereign 
rights. ' '  ^ 

RECONSTRUCTION 

The  Federal  Government  had  sufficient  difficulty  in 
maintaining  even  a  semblance  of  constitutional  form 
during  the  prosecution  of  the  Civil  War,  but  when, 
at  the  cessation  of  hostilities,  it  was  confronted  by  the 
problem  of  reconstructing  the  state  governments  of 
the  people  lately  in  rebellion  and  placing  the  whole 
Union  upon  a  permanent  peace  footing,  it  found  itself 
beset  with  a  still  severer  constitutional  problem,— or 
rather  with  a  constitutional  problem  which,  though 
1  Citing  Rose  v.  Himely,  4  Cr.,  241. 

85 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


simple  in  itself,  when  solved  in  the  manner  most  oh- 
viously  pointed  out  by  logical  consistency,  led  to  prac- 
tical results  that  could  not  for  a  moment  be  accepted. 
Shortly  stated,  the  difficulty  was  this :  If,  as  the  Fed- 
eral Government  had  ail  along  claimed,  the  ordinances 
of  secession  enacted  by  the  Southern  States  had  been 
mere  nullities,  and  therefore,  those  States  had,  from 
the  strictly  legal  standpoint,  never  been  out  of  the 
Union,  then,  hostilities  having  ceased,  and  the  citi- 
zens and  authorities  of  those  States  having  declared 
their  loyalty  to  the  Union  and  readiness  again  to  fulfil 
their  constitutional  obligations,  there  Avas,  it  would 
seem,  no  constitutional  objection  that  could   be   in- 
terposed to  prevent  them  from  doing  so,  and  thus  at 
once  beginning  again  the  exercise  of   those  political 
and   other  privileges   that   the    federal    Constitution 
grants  equally  to  all  the  commonwealth  members  of 
the  Union.   '  The  chief  among  these  rights  were  of 
course  the  right  to  send  representatives  to  Congress, 
to  participate   in   the   election   of  the   President,   to 
have  federal  laws  and  federal  administration  applied 
within  their  respective  limits  in  a  manner  no  differ- 
ent from  that  in  which  it  is  applied  in  all  the  other 
States,  and,  finally,  to  be  left  at  liberty  to  exercise, 
free  from  federal  interference,  all  those  rights  that 
were  reserved  to  them  by  the  federal  Constitution. 

The  foregoing  was  exactly  the  position  assumed 
by  the  lately  rebellious  States.  If,  their  leaders  de- 
clared, the  war  was  one  against  individuals,  and  not 
against  States,  with  what  constitutional  right  could 
the  Federal  Government  after  the  war  impose  penal- 
ties not  upon  individuals  but  upon  the  States  1 

86 


SECESSION:    COERCION:    RECONSTRUCTION 

The  force  of  this  argument  was  clearly  seen,  but 
to  have  acted  upon  it  would  of  course  have  been  to 
render  the  terrible  struggle  that  had  been  waged 
unsatisfactory  in  its  results.  The  actual  disruption  of 
the  Union  would  have  been  prevented,  but  no  guaran- 
tees would  have  been  obtained  that  at  another  and 
more  favorable  time  the  attempt  at  separation  would 
not  be  repeated.  Furthermore,  and  equally  impor- 
tant, such  a  course  would  have  left  both  the  legal 
white  minorities  and  the  helpless  blacks  wholly  at 
the  mercy  of  the  populations  of  those  States,  which, 
though  conquered,  were  not  convinced  either  of  the 
unconstitutionality  or  of  the  impolicy  of  the  action 
they  had  attempted ;  and,  therefore,  as  simply  yield- 
ing to  superior  force,  could  not  be  expected  to  en- 
tertain a  lively  sense  of  affection  for,  or  obligation 
to,  those  who  had  either  not  assisted  in  or  had  actu- 
ally striven  to  prevent,  the  realization  of  their  de- 
sires, and,  as  they  still  believed,  their  rights. 

To  avoid  the  Southern,  Democratic,  or  "Restora- 
tion" theory,  as  it  was  called,  four  views  as  to  the 
constitutional  status  of  the  conquered  States  were 
advanced,  according  to  three  of  which,  if  accepted, 
the  Federal  Government  would  be  given  a  compara- 
tively free  hand  in  imposing  such  requirements  as  it 
might  see  fit  as  conditions  precedent  to  the  readmis- 
sion  of  the  lately  rebellious  States  to  the  privileges  of 
full  membership  in  the  Union.  To  these  four  theories 
were  given  the  names,  "Presidential,"  "State  Sui- 
cide," "Conquered  Province,"  and  "Forfeited 
Rights"  theories  respectively. 

According  to  the  "Presidential"  theory,  that  is  to 
87 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

say,  that  theory  which  was  first  attempted  to  be  put 
into  execution  by  Lincoln  and  later  accepted,  in  prin- 
ciple at  least,  by  Johnson,  it  was  held  that  the  Union 
was  legally  indestructible,  and  that,  therefore,  the 
Southern  States  had  never  been  out  of  the  Union. 
But  though  not  ceasing  to  be  States,  it  was  held  that 
they  no  longer  had  constitutional  governments.  Ac- 
cording to  this  theory,  then,  so  long  as  this  remained 
the  case,  the  States  had  no  constitutional  rights,  sim- 
ply for  the  reason  that  they  had  no  organs  through 
which  they  might  be  claimed  and  exercised.  The  first 
aim  of  these  States  should  therefore  be,  it  was  argued, 
to  reestablish  governments,  republican  in  form  and 
loyal  to  the  Union.  In  the  performance  of  this  task 
the  General  Government,  it  was  declared,  might  con- 
stitutionally lend  its  aid,  but  might  not  impose  a  con- 
trolling will. 

According  to  the  "State  Suicide"  theory  of  Sum- 
ner, the  ordinances  of  secession,  though  powerless  to 
take  the  States  out  of  the  Union,  had  had  sufficient 
vitality  to  cause  the  States  adopting  them  to  commit 
political  felo  de  se.  Thus,  such  States,  being  reduced 
to  a  non-state  or  territorial  status,  became  subjected  to 
that  complete  jurisdiction  which  the  Constitution  gives 
Congress  over  the  territories.  Therefore,  Sumner 
held,  that  body  might  impose  any  conditions  that  it 
might  see  fit  before  again  erecting  them  into  States.^ 

^  Hurd,  in  his  "Theory  of  Our  National  Existence,"  and  Brown- 
son,  in  his  "American  Republic,"  by  developing  a  peculiar  theory 
as  to  the  location  of  sovereignty  in  the  United  States,  were  able 
to  ascribe  to  the  ordinances  of  secession  the  same  effect  as  that 
given  to  them  by  Sumner. 


SECESSION:    COERCION:    RECONSTRUCTION 

The  "Conquered  Province"  theory,  the  most  ex- 
treme doctrine  of  all,  was  fathered  by  Thaddeus 
Stevens.  According  to  his  view,  the  States  of  the 
South  were  to  be  treated  as  conquered  provinces,  and 
as  such,  to  be  subjected  to  whatever  penalties  Con- 
gress and  the  President,  acting  under  the  ample  pow- 
ers of  war,  might  see  fit  to  impose. 

Last  of  all  was  the  "Forfeited  Rights"  or  "Con- 
gressional" theory  of  Reconstruction.  According  to 
this  view,  the  States  lately  in  rebellion  had  remained 
States  and  continued  in  the  Union,  but,  by  their  re- 
bellion, had  forfeited  those  constitutional  rights  to 
which  otherwise  they  would  be  entitled  by  the  federal 
Constitution.  Therefore,  it  was  declared.  Congress 
might  judge  when,  and  under  what  conditions,  the 
rights  thus  forfeited  might  be  returned. 

For  the  purpose  of  this  constitutional  study  it  will 
not  be  necessary  to  trace  the  history  of  the  manner 
in  which  the  "reconstruction"  of  the  Southern 
States  was  finally  effected,  nor  to  speak  of  the  consti- 
tutional contest  waged  between  the  federal  executive 
and  federal  legislature.  As  a  summary,  however,  we 
may  say  that  "the  war  was  begun  under  the  theory 
of  'restoration,'  and  that  this  theory  was  persistently 
maintained  by  the  democrats  to  the  end;  that  the 
presidential  theory  was  developed  by  Lincoln  in  1863, 
and  carried  out  by  Johnson  in  1865,  but  fell  back 
under  the  hands  of  the  latter  into  a  modification  of 
the  restoration  theory ;  that  the  Sumner  and  Stevens 
theories  received  no  formal  ratification  from  any 
quarter;  but  that  Congress  .  .  .  was  pressed  by  the 
force  of  contest  with  the  presidential  theory  into  a 

89 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

plan  of  its  own  in  1867,  consisting  of  the  Davis-Wage 
plan,  increased  by  the  suffrage  features  of  the  Sum- 
ner theory,  and  the  whole  based  on  a  modification  of 
the  Stevens  theory  of  the  suspension  of  the  Consti- 
tution." ^ 

As  regards  the  abstract  constitutionality  of  the  five 
reconstruction  theories  mentioned,  there  can  be  no 
question  but  that  the  Southern  Democratic  or  Resto- 
ration theory  was  the  one  most  nearly  in  consonance 
with  the  general  constitutional  theory  upon  which  the 
North  had  declared  and  waged  the  war.^ 

The  constitutional  objections  to  the  presidential 
theory,  aside  from  the  question  as  to  whether  it  should 
be  applied  by  the  executive  or  by  the  legislature,  were 
not  serious.  It  was  not  unreasonable  to  maintain 
that  the  lately  rebellious  States  were  without  govern- 
ments qualified  to  exercise  the  constitutional  rights 
that  were  claimed,  and,  this  being  so,  it  was  well 
within  the  province  of  the  Federal  Government  to 
lend  its  advice  and  even  armed  forces  to  the  loyal 
minorities  in  those  States  for  the  purpose  of  aiding 

1  Quoted  from  the  article  "  Reconstruction  "  in  Lalor's  "  Cyclo- 
pedia of  Political  Science,"  by  the  late  Alexander  Johnston. 

2  At  the  special  session  of  Congress  in  18G1,  a  Joint  Resolution 
passed  by  very  large  majorities  in  both  Houses  defined  the  object 
of  the  war  as  follows ;  "  That  this  war  is  not  prosecuted  upon 
our  part  in  any  spirit  of  oppression,  nor  for  any  purpose  of  con- 
quest or  subjugation,  nor  for  the  purpose  of  overthrowing  or 
interfering  with  the  rights  or  established  institutions  of  those 
States,  but  to  defend  and  maintain  the  supremacy  of  the  Consti- 
tution and  all  laws  made  in  pursuance  thereof,  and  to  preserve 
the  Union  with  all  the  dignity,  equality,  and  rights  of  the  several 
States  unimpaired ;  that  as  soon  as  these  objects  are  accom- 
plished, the  war  ought  to  cease." 

90 


SECESSION:    COERCION:    RECONSTRUCTION 

them  to  establish  governments  that  might  fairly  be 
termed  loyal  to  the  Union.  Therefore  it  would  seem 
that  no  constitutional  objection  lay  to  the  proclama- 
tion of  President  Lincoln  in  which  he  said  that  when 
one  tenth  of  the  loyal  voters  should  establish  a  state 
government  that  was  republican  in  form,  such  gov- 
ernment would  be  recognized  by  him  as  the  true 
government  of  that  State,  and  the  State  thereupon 
admitted  to  all  the  rights  guaranteed  it  by  the 
federal  Constitution.  As  to  the  right,  however,  of 
the  President  himself  to  determine,  as  he  did  in  his 
proclamation,  when  and  under  what  circumstances 
citizens  of  the  States  in  question  should  be  qualified 
to  hold  office,  there  would  seem  to  be  constitutional 
objection.  Also  it  might  very  well  be  asked  whether 
any  government  established  by  simply  one  tenth  of 
the  adult  males  of  a  community  could  be  said  to  be 
republican  in  character.  To  this  point  we  shall  re- 
turn later  on  when  we  come  to  consider  the  meaning 
of  that  clause  of  the  Constitution  which  provides 
that  the  United  States  shall  guarantee  to  each  State 
•  a  government  republican  in  form. 

The  "State  Suicide"  theory  of  Sumner  as  well  as 
the  "Conquered  Province"  theory  of  Stevens  are  to 
be  regarded  as  having  been  wholly  illogical  and  in- 
consistent with  that  view  of  the  nature  of  the  Union 
upon  which  the  war  had  been  fought ;  the  former  be- 
cause it  could  not  be  granted  that  a  State  was  able,  by 
any  act  of  its  own,  to  change  its  constitutional  and 
political  status  in  the  Union  any  more  than  it  could 
take  itself  out  of  the  Union;  the  latter  because  the 
principles  applicable  to  conquered  territory  have  ref- 

91 


THE  AMERICAN  CONSTITUTIONAL   SYSTEM 

erence  only  to  foreign  territory  subdued  by  force  of 
arms.  Manifestly  a  State  cannot  make  a  conquest  of 
its  own  territory;  and,  if  the  States  could  not  secede, 
they  could  not  become  foreign. 

The  "Forfeited  Rights"  or  "Congressional"  theory 
of  Reconstruction  was,  in  a  way,  a  compromise  be- 
tween the  Presidential  theory  on  the  one  hand  and 
the  theories  of  Sumner  and  Stevens  on  the  other,  but 
in  so  far  as  it  departed  from  the  former  and  instead 
of  simply  aiding  the  inhabitants  of  the  Southern 
States  themselves  to  establish  loyal,  republican  gov- 
ernments, imposed  conditions  that  were  not,  and  could 
not  constitutionally  be,  required  of  the  other  States 
in  the  Union,  it  was  clearly  inconsistent  with  the  gen- 
eral northern  theory  as  to  the  character  of  the  Union. 
Aside,  moreover,  from  the  invalidity  of  the  argument 
that  the  States,  as  States,  might  "forfeit"  any  of 
their  constitutional  rights  any  more  than  that  they 
could  commit  suicide,  Congress  was  led,  in  the  appli- 
cation of  the  theorj',  into  the  grossest  of  inconsis- 
tencies, recognizing  the  Southern  Commonwealths  as 
effective  members  of  the  Union  for  some  purposes —  » 
as  for  instance,  for  the  ratification  of  constitutional 
amendments-- while  denying  it  as  to  others;  and  de- 
claring governments  forced  by  the  bayonet  upon  un- 
willing peoples  as  republican  in  form.  Upon  a  nar- 
ration of  these  facts,  however,  we  do  not  need  to 
enter. 

Repeated  efforts  were  made  to  get  the  Supreme 
Court  of  the  United  States  to  pass  upon  the  consti- 
tutionality of  the  various  acts  passed  by  Congress  for 
the  reconstruction  of  the  Southern  States,  but  with- 

92 


SECESSION:    COERCION:    RECONSTRUCTION 

out  complete  success.  In  a  general  way  the  court  ac- 
cepted as  valid  the  Congressional  theory,  but  never 
passed  definitely  upon  the  constitutionality  of  the  acts 
of  Congress  that  were  passed  for  putting  that  theory 
into  practice.  In  all  the  cases  that  were  brought  be- 
fore it  the  court  evaded  a  definite  decision,  either  by 
declaring  the  questions  involved  political  in  nature, 
and  therefore  as  not  subject  to  its  jurisdiction,  or  by 
finding  a  way  to  decide  them  upon  some  ground  that 
made  it  unnecessary  to  consider  the  validity  of  the 
acts  that  were  impugned.  Upon  several  occasions, 
however,  the  Court  did  not  hesitate  to  repudiate  in 
the  most  emphatic  manner  the  doctrine  that  the 
States  had  been  outside  of  the  Union,  or  that  they 
could  possibly,  by  any  constitutional  act  of  theirs,  ever 
become  so.  In  the  famous  case  of  Texas  v.  White  (7 
Wall.,  700)  both  the  right,  or  rather  the  power,  of  a 
State  to  take  itself  out  of  the  Union,  and  the  status 
of  the  States  during  the  reconstruction  period  were 
brought  squarely  before  the  Court.  Soon  after  the 
war,  but  before  its  government  had  been  recognized 
by  Congress  as  satisfactorily  reconstructed,  the  State 
of  Texas  brought  suit  in  the  Supreme  Court  of  the 
United  States  under  that  clause  of  the  federal  Consti- 
tution which  gives  to  the  federal  Supreme  Court  juris- 
diction of  suits  prosecuted  by  a  State  against  citi- 
zens of  another  State.  But  unless  Texas  were  at  that 
time  a  State  of  the  Union  she,  of  course,  had  no  stand- 
ing as  a  suitor  before  the  federal  court.  That  Court 
had  thus  to  pass  in  limine  upon  the  questions  of  se- 
cession and  reconstruction.  Upon  the  former  of  these 
points  the  Court  declared  as  follows:  "The  Union  of 

93 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

the  States  never  was  a  purely  artificial  and  arbitrary- 
relation.  It  began  among  the  colonies,  and  grew  out 
of  common  origin,  mutual  sympathies,  kindred  prin- 
ciples, similar  interests,  and  geographical  relations. 
It  was  confirmed  and  strengthened  by  the  necessities 
of  war,  and  received  definite  form  and  character  and 
sanction  from  the  Articles  of  Confederation.  By 
these  the  Union  was  solemnly  declared  to  'be  per- 
petual.' And  when  these  Articles  were  found  to  be 
inadequate  to  the  exigencies  of  the  country,  the  Con- 
stitution was  ordained  'to  forai  a  more  perfect 
Union. '  It  is  difficult  to  convey  the  idea  of  indissolu- 
ble unity  more  clearly  than  by  these  words.  What  can 
be  more  indissoluble,  if  a  perpetual  union,  made  more 
perfect,  is  not?  But  the  perpetuity  and  indissolu- 
bility of  the  Union  by  no  means  implies  the  loss  of 
distinct  and  individual  existence  or  of  the  right  of 
self-government  by  the  States.  Under  the  Articles 
of  Confederation,  each  State  retained  its  sovereignty, 
freedom,  and  independence,  and  every  power,  juris- 
diction and  right  not  expressly  delegated  to  the  United 
States.  Under  the  Constitution,  though  the  powers  of 
the  States  were  much  restricted,  still,  all  powers  not 
delegated  to  the  United  States,  nor  prohibited  to  the 
States,  are  reserved  to  the  States  respectively,  or  to 
the  people.  And  we  have  already  had  occasion  to  re- 
mark at  this  term,  that  'the  people  of  each  State  com- 
pose a  State,  having  its  own  government,  and  en- 
dowed with  all  the  functions  essential  to  separate 
and  independent  existence,'  and  that  'without  the 
States  in  Union,'  there  would  be  no  such  political 
body  as  the  United  States  (Lane  County  v.  Oregon, 

94 


SECESSION:    COERCION:    RECONSTRUCTION 

7  Wall.,  76).  Not  only,  therefore,  can  there  be  no 
loss  of  separate  and  independent  autonomy  to  the 
States  through  their  Union  under  the  Constitution, 
but  it  may  be  not  unreasonably  said  that  the  preser- 
vation of  the  States  and  the  maintenance  of  their 
governments  are  as  much  within  the  design  and  care 
of  the  Constitution  as  the  preservation  of  the  Union 
and  the  maintenance  of  the  National  Government. 
The  Constitution,  in  all  its  provisions,  looks  to  an 
indestructible  Union  composed  of  indestructible 
States.  When,  therefore,  Texas  became  one  of  the 
United  States,  she  entered  into  an  indissoluble  rela- 
tion. .  .  .  The  act  which  consummated  her  admis- 
sion into  the  Union  was  something  more  than  a  com- 
pact ;  it  was  the  incorporation  of  a  new  member  into 
the  political  body.  .  .  .  The  union  between  Texas 
and  the  other  States  was  as  complete,  as  perpetual 
and  as  indissoluble  as  the  union  between  the  original 
States.  There  was  no  place  for  reconsideration,  or 
revocation,  except  through  revolution,  or  through  the 
consent  of  the  States. 

"Considered,  therefore,  as  transactions  under  the 
Constitution,  the  ordinance  of  secession,  adopted  by 
the  convention  and  ratified  by  a  majority  of  the  citi- 
zens of  Texas,  and  all  the  acts  of  her  legislature  in- 
tended to  give  elfect  to  that  ordinance,  were  abso- 
lutely null.  They  were  utterly  without  operation  in 
law.  The  obligations  of  the  State,  as  a  member  of  the 
Union,  and  of  every  citizen  of  the  State,  as  a  citizen  of 
the  United  States,  remained  perfect  and  unimpaired. 
It  certainly  follows  that  the  State  did  not  cease  to  be 
a  State,  nor  her  citizens  to  be  citizens  of  the  Union." 

95 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


Having  thus  determined  that  the  State  of  Texas 
was,  and  always  had  been,  a  State  in  the  Union,  since 
the   time   of   her   admission   thereinto    in    1845,    the 
Court  next  addressed  itself  to  the  question  whether 
at  the  time  the  suit  was  brought  it  was,  notwithstand- 
ing its  "unreconstructed"  condition,  in  a  position  to 
claim  the  privileges  secured  to  States  by  the  federal 
Constitution,  and  among  them,  in  particular  to  the 
right  to  bring  an  original  suit  in  the  Supreme  Court 
of  the  United  States.    As  to  this  the  Court  said :  "  In 
order  to  the  exercise,  by  a  State,  of  the  right  to  sue 
in  this  Court,  there  needs  to  be  a  state  government, 
competent  to  represent  the  State  in  its  relations  with 
the  National  Government,  so  far  at  least  as  the  insti- 
tution and  prosecution  of  a  suit  is  concerned.    And  it 
is  by  no  means  a  logical  conclusion,  from  the  premises 
which  we  have  endeavored  to  establish,  that  the  gov- 
ernmental relations  of  Texas  to  the  Union  remained 
unaltered.  ...  No  one  has  been  bold  enough  to  con- 
tend that,  while  Texas  was  controlled  by  a  govern- 
ment hostile  to  the  United  States,  and,  in  affiliation 
with  a  hostile  confederation,  waging  war  upon  the 
United  States,  Senators  chosen  by  her  legislature,  or 
Representatives  elected  by  her  citizens,  were  entitled 
to  seats  in  Congress;  or  that  any  suit,  instituted  in 
her  name,  could  be  entertained  in  this  Court.     All 
admit  that,  during  this  condition  of  civil  war,  the 
rights  of  the  State  as  a  member,  and  of  her  people 
as  citizens  of  the  Union,  were  suspended.  .  .  .  These 
new  relations  imposed  new  duties  upon  the  United 
States.     The  first  was  that  of  suppressing  the  rebel- 
lion.   The  next  was  that  of  reestablishing  the  broken 

96 


SECESSION:    COERCION:    RECONSTRUCTION 

relations  of  the  States  with  the  Union.  .  .  .  The  au- 
thority for  the  performance  of  the  first  had  been 
found  in  the  power  to  suppress  insurrection  and  carry 
on  war;  for  the  performance  of  the  second,  authority 
was  derived  from  the  obligation  of  the  United  States 
to  guarantee  to  every  State  in  the  Union  a  republican 
form  of  government.  .  .  .  When  the  war  closed  there 
was  no  government  in  the  State  except  that  which  had 
been  organized  for  the  purpose  of  waging  war  against 
the  United  States.  That  government  immediately  dis- 
appeared. .  .  .  There  being,  then,  no  government  in 
Texas  in  constitutional  relations  with  the  Union,  it 
became  the  duty  of  the  United  States  to  provide  for 
the  restoration  of  such  a  government.  .  .  .  Whether 
the  action  then  taken  was,  in  all  respects,  warranted 
by  the  Constitution,  it  is  not  now  necessary  to  de- 
termine." The  acts  of  the  President,  the  Court  then 
went  on  to  say,  were  done  in  pursuance  of  his  pow- 
ers as  Commander-in-chief  of  the  army,  and  were 
but  provisional  and  were  so  regarded  by  Congress. 
As  regards  the  acts  of  Congress  the  Court  said  that 
nothing  in  the  case  required  it  to  pronounce  judg- 
ment upon  the  constitutionality  of  any  particular 
provision  of  them,  the  fact  that  it  appeared  that  the 
government  that  brought  the  suit  had  been  recognized 
by  Congress  as  the  actually  existing  government  of  the 
State,  being  sufficient  to  give  it  jurisdiction.^ 

1  Justice  Grier  rendered  a  dissenting  opinion  in  which  he  main- 
tained that  whatever  may  have  been  the  theory,  Texas  had,  as 
a  fact,  been  outside  of  the  Union,  and  had  been  so  decided  to  be 
by  Congress.  "It  is  a  question  of  fact,  I  repeat,  and  of  fact 
only,"  he  declared.     "Politically,  Texas  is  not  a  State  in  this 

"  97 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

In  Knox  v.  Lee  (12  Wall.,  557)  the  Court  said, 
speaking  through  the  mouth  of  Justice  Bradley :  ' '  The 
doctrine  so  long  contended  for,  that  the  federal  Union 
was  a  mere  compact  of  States,  and  that  the  States,  if 
they  chose,  might  annul  and  disregard  the  acts  of  the 
national  legislature,  or  might  secede  from  the  Union 
at  their  pleasure,  and  that  the  General  Government 
had  no  power  to  coerce  them  into  submission  to  the 
Constitution,  should  be  regarded  as  definitely  and  for- 
ever overthrown.  This  has  finally  been  effected  by 
the  national  power,  as  it  had  often  been  before  by 
overwhelming  argument.  .  .  .  The  United  States  is 
not  only  a  government,  but  it  is  a  National  Govern- 
ment, and  the  only  government  in  this  country  that 
has  the  character  of  nationality." 

In  Keith  v.  Clark  (97  U.  S.,  454),  decided  in  1878, 
the  Supreme  Court  again  emphatically  asserted  the 
legal  conclusion  that  the  seceding  States  had  never 
been  out  of  the  Union.  Referring  to  Tennessee,  the 
Court  declared:  "This  political  body  has  not  only 
been  all  this  time  a  State  and  the  same  State,  but  it 
has  always  been  one  of  the  United  States,— a  State  of 
the  Union.  Under  the  Constitution  by  virtue  of  which 
Tennessee  was  born  into  the  family  of  States,  she  had 
no  lawful  power  to  depart  from  that  Union.  .  .  . 
She  never  escaped  the  obligations  of  that  Constitu- 
tion, though  for  a  while  she  may  have  evaded  their 
enforcement. ' ' 

Before  either  of  the  cases  of  Texas  v.  White,  and 

Union.  Whether  rightfully  out  of  it  or  not  is  a  question  not  be- 
fore the  Court."  With  Justice  Grier  Justices  Swayne  and  Miller 
concurred. 


SECESSION:    COERCION:    RECONSTRUCTION 

Keith  V.  Clark  was  decided,  an  attempt  was  made  to 
have  the  reconstruction  acts  held  unconstitutional  by 
the  Supreme  Court,  by  asking  for  an  injunction  re- 
straining the  President  from  enforcing  them.  The 
federal  court,  however,  decided  that  it  could  not  grant 
a  restraining  order  against  the  Chief  Executive 
under  the  circumstances,  the  matters  involved  being 
political  and  not  judicial  in  character  (Mississippi  v. 
Johnson,  4  Wall.,  475) . 


99 


CHAPTER  V 

THE   SUPREMACY   OF   FEDERAL   LAW 

The  foregoing  pages  have  sufficiently  shown  that  the 
Federal  Government  has  no  power  to  coerce  a  State, 
as  a  State.  They  have  also  shown  that  the  National 
State,  because  of  its  absolute  sovereignty  over  all  the 
land  and  people  of  the  United  States,  and  because  of 
its  paramountcy  over  all  its  political  subdivisions,  has 
full  power  to  protect  any  right  and  to  enforce  any  law 
of  its  own  at  any  time,  and  at  any  place  within  its 
territorial  limits,  any  resistance  of  private  individuals, 
or  state  officials,  acting  with  or  without  the  author- 
ity of  state  law  to  the  contrary  notwithstanding. 
Having  the  authority,  the  United  States  has  the  right 
to  declare  illegal,  to  fix  and  enforce  by  its  own  tri- 
bunals a  penalty  upon  any  resistance  opposed  to  its 
agents  when  acting  within  their  official  spheres,  and, 
if  necessary,  to  prevent  by  its  own  armed  forces  such 
interference  when  threatened  or  overcome  it  when 
actually  attempted. 

The  possession  by  the  National  Government  of  this 
general  right  has  been  uniformly  asserted  by  the 
Supreme  Court,  throughout  the  whole  period  of  its 
existence,  whenever  such  an  assertion  has  been  neces- 
sary. Thus  in  1824,  in  the  case  of  Osborn  v.  Bank  of 
U.  S.  (9  Wh.,  738)— a  case  to  which  we  have  already 

100 


THE  SUPREMACY  OF  FEDERAL  LAW 

referred  in  another  connection— Chief  Justice  Mar- 
shall met  the  argument  that  the  suit,  being  against 
one  of  its  officials  and  based  upon  acts  committed  by 
him  in  his  official  capacity,  was  in  fact  a  suit  against 
the  State  of  Ohio,  one,  therefore,  which,  under  the 
Eleventh  Amendment,  the  Court  was  without  au- 
thority to  try,  by  declaring:  "A  denial  of  jurisdic- 
tion forbids  all  inquiry  into  the  nature  of  the  case. 
It  applies  to  cases  perfectly  clear  in  themselves;  to 
cases  where  the  [National]  Government  is  in  the  ex- 
ercise of  its  best  established  and  most  essential  pow- 
ers, as  well  as  to  those  which  may  be  deemed  question- 
able. It  asserts  that  the  agents  of  a  State,  alleging  the 
authority  of  a  law,  void  in  itself,  because  repugnant 
to  the  Constitution,  may  arrest  the  execution  of  any 
law  in  the  United  States.  It  maintains  that  if  a 
State  shall  impose  a  fine  or  penalty  on  any  person  em- 
ployed in  the  execution  of  any  law  of  the  United 
States,  it  may  levy  that  fine  or  penalty  by  a  minis- 
terial officer,  without  the  sanction  even  of  its  own 
courts;  and  that  the  individual,  though  he  perceives 
the  approaching  danger,  can  obtain  no  protection 
from  the  judicial  department  of  the  [National]  Gov- 
ernment. .  .  .  The  question,  then,  is  whether  the 
Constitution  of  the  United  States  has  provided  a  tri- 
bunal which  can  peacefully  and  rightfully  protect 
those  who  are  employed  in  carrying  into  execution 
the  laws  of  the  Union  from  the  attempts  of  a  partic- 
ular State  to  resist  the  execution  of  those  laws." 
That  Marshall  answered  this  question  in  the  affirma- 
tive need  not  be  said. 

Again,  after  the  Civil  War,  the  Court  said,  when 
101 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

confronted  by  the  proposition  that  because  the  United 
States  was  without  any  general  criminal  law  jurisdic- 
tion it  might  not  punish  criminally  individuals  who 
had  violated  certain  of  its  laws  relating  to  congres- 
sional elections :  "It  is  argued  that  the  preservation 
of  peace  and  good  order  in  society  is  not  within  the 
powers  confided  to  the  government  of  the  United 
States,  but  belongs  exclusively  to  the  States.  Here 
again  we  are  met  with  the  theory  that  the  govern- 
ment of  the  United  States  does  not  rest  upon  the  soil 
and  territory  of  the  country.  AVe  think  that  this 
theory  is  founded  on  an  entire  misconception  of  the 
nature  and  powers  of  that  government.  We  hold  it 
to  be  an  incontrovertible  principle  that  the  govern- 
ment of  the  United  States  may,  by  means  of  physical 
force,  exercised  through  its  official  agents,  execute 
on  every  foot  of  American  soil  the  powers  and  func- 
tions that  belong  to  it.  This  necessarily  involves 
the  power  to  command  obedience  to  its  laws,  and 
hence  the  power  to  keep  the  peace  to  that  extent  " 
(Ex  parte  Siebold,  100  U.  S.,  371). 

Finally  in  the  Debs  case  (In  re  Debs,  158  U.  S., 
564),  a  case  growing  out  of  the  great  railway  strike  of 
1894,  the  plenitude  of  the  federal  power  was  emphati- 
cally stated.  Speaking  of  the  right  of  the  National 
Government  to  protect,  by  armed  force  if  necessary, 
interstate  commerce  and  the  transportation  of  the 
mails,  the  Court  said :  "  If  all  the  inhabitants  of  a  sin- 
gle State  or  even  a  great  body  of  them  should  combine 
to  obstruct  interstate  commerce  or  the  transportation 
of  the  mails,  prosecution  of  s«ch  offenses  had  in  such 
a  community  would  be  doomed  in  advance  to  failure. 

102 


THE  SUPREMACY  OF  FEDERAL  LAW 

And  if  the  certainty  of  such  failure  was  known  and 
the  National  Government  had  no  other  way  to  enforce 
the  freedom  of  interstate  commerce  and  the  transpor- 
tation of  the  mails  than  by  prosecution  and  punish- 
ment for  interference  therewith,  the  whole  interests 
of  the  Nation  in  these  respects  would  be  at  the  abso- 
lute mercy  of  a  portion  of  the  inhabitants  of  a  single 
State.  But  there  is  no  such  impotency  in  the  National 
Government.  The  entire  strength  of  the  Nation  may 
be  used  to  enforce  in  any  part  of  the  land  the  full 
and  free  exercise  of  all  national  powers  and  the  se- 
curity of  all  rights  intrusted  by  the  Constitution  to  its 
care.  The  strong  arm  of  the  National  Government 
may  be  put  forth  to  brush  away  all  obstructions  to 
the  freedom  of  interstate  commerce  or  the  transporta- 
tions of  the  mails.  If  the  emergency  arises,  the  army 
of  the  Nation  and  all  its  militia  are  at  the  service  of 
the  Nation  to  compel  obedience  to  its  laws." 

A  corollary,  that  necessarily  follows  from  the  gen- 
eral principle  we  have  been  discussing,  is  that  no  State 
can  declare  and  punish  as  criminal,  acts  authorized  by 
federal  law.  This  has  not  been  directly  denied  by  the 
States,  since  the  Civil  War  at  least,  but  it  has  been 
most  strenuously  asserted  by  them  that  when  an 
offense  has  been  committed  against  one  of  their  laws, 
and  the  one  committing  it  has  been  apprehended  and 
brought  to  trial  before  their  courts,  he  is  not  entitled 
to  have  his  case  removed  at  once  to  the  federal  courts 
simply  by  setting  np  as  a  defense  that  his  act  was 
done  in  pursuance  of  an  authority  delegated  him  by 
the  General  Government.  The  right  to  set  up  this 
defense  has  not  been  denied  by  the  States,  nor  have 

103 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


they  claimed  that,  should  the  decision  of  their  courts 
be  adverse  to  him  upon  this  point,  he  may  take  an 
appeal  from  their  highest  tribunals  to  the  Supreme 
Court  of  the  United  States.  But  they  have  asserted 
that  when  an  act  has  been  committed  which  is  crim- 
inal by  their  laws,  it  is,  primarily,  an  offense  against 
their  peace,  and  as  such  cognizable  only  in  their  own 
courts,  and  therefore  that  though,  as  has  been  just 
said,  a  right  of  appeal  from  their  highest  courts  to 
the  United  States  Supreme  Court  upon  the  point  of 
federal  authority  must  be  allowed,  the  trial  of  the 
offense  may  not  as  a  matter  of  right  be  removed  by 
the  accused  one  from  the  state  court  in  which  it  is 
begun  to  one  of  the  lower  federal  courts. 

A  leading  case  upon  this  point  is  that  of  Tennessee 
V.  Davis  (100  U.  S.,  257),  decided  in  1879.  The  fa- 
mous Force  Act  of  1833,  passed  at  the  time  of  South 
Carolina's  attempted  nullification  of  the  United 
States  tariff  law,  provided  that  "when  any  civil  suit 
or  criminal  prosecution  is  commenced  in  any  court  of 
a  State  against  any  officer  appointed  under,  or  act- 
ing by  authority  of,  any  revenue  law  of  the  United 
States,  now  or  hereafter  enacted,  or  against  any  per- 
son acting  by  or  under  authority  of  any  such  officer, 
or  on  account  of  any  act  done  under  color  of  his 
office,"  the  case,  at  the  defendant's  instance,  might 
be  at  once  removed  from  the  state  to  the  federal 
courts  for  trial.  Davis,  a  federal  revenue  officer, 
killed  a  man,  was  arrested  therefor,  and,  when 
brought  to  trial,  applied  for  removal  to  a  federal  court 
under  this  act.  The  State  of  Tennessee,  however,  de- 
nied the  constitutionality  of  this  grant  of  right.    Jus- 

104 


THE  SUPREMACY  OF  FEDERAL  LAW 

tice  Strong,  in  rendering  the  opinion  of  the  United 
States  Supreme  Court  upon  this  point,  prefaced  his 
discussion  of  this  point  by  saying:  "A  more  important 
question  can  hardly  be  imagined.  Upon  its  answer 
may  depend  the  possibility  of  the  General  Govern- 
ment's preserving  its  own  existence.  As  was  said  in 
Martin  v.  Hunter's  Lessee  (1  Wh.,  363),  'the  General 
Government  must  cease  to  exist  whenever  it  loses  the 
power  of  protecting  itself  in  the  exercise  of  its  con- 
stitutional powers.'  It  can  act  only  through  its  offi- 
cers and  agents,  and  they  must  act  within  the  States. 
If,  when  thus  acting,  and  within  the  scope  of  their 
authority,  those  officers  can  be  arrested  and  brought 
to  trial  in  a  state  court,  for  an  alleged  offense  against 
the  law  of  the  State,  yet  warranted  by  the  federal 
authority  they  possess,  and  if  the  General  Govern- 
ment is  powerless  to  interfere  at  once  for  their  protec- 
tion— if  their  protection  must  be  left  to  the  action  of 
the  state  courts — the  operations  of  the  General  Gov- 
ernment may  at  any  time  be  arrested  at  the  will  of 
one  of  its  members.  The  legislature  of  a  State  may 
be  unfriendly.  It  may  affix  penalties  to  acts  done 
under  the  immediate  direction  of  the  National  Gov- 
ernment, and  in  obedience  to  its  laws.  It  may  deny 
the  authority  conferred  by  those  laws.  The  state 
court  may  administer  not  only  the  laws  of  the  State, 
but  equally  federal  law,  in  such  a  manner  as  to  para- 
lyze the  operations  of  the  government.  And  even 
if,  after  trial  and  final  judgment  in  the  state  court, 
the  case  can  be  brought  into  the  United  States  court 
for  review,  the  officer  is  withdrawn  from  the  discharge 
of  his  duty  during  the  pendency  of  the  prosecution, 

105 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


and  the  exercise  of  acknowledged  federal  authority 
arrested.  We  do  not  think  such  an  element  of  weak- 
ness is  to  be  found  in  the  Constitution." 

In  this  case  Justices  Clifford  and  Field  dissented, 
their  dissent  being  based  upon  the  argument  that 
though  Congress  might,  beyond  all  doubt,  pass  such 
laws  as  it  should  deem  necessary  for  the  protection  of 
its  agents,  and  might  for  that  purpose  define  the  acts 
that  should  be  considered  crimes,  and  give  to  the  in- 
ferior federal  courts  jurisdiction  to  try  those  charged 
with  committing  them,  yet,  until  there  has  been  such 
specific  federal  legislation,  the  United  States  circuit 
and  district  courts  could  not  constitutionally  take  or 
be  given  jurisdiction,  for  the  reason  that  no  federal 
statute  has  been  violated.  "Unquestionable  jurisdic- 
tion to  try  and  punish  offenders  against  the  authority 
of  the  United  States,"  they  declared,  "is  conferred 
upon  the  circuit  and  district  courts;  but  the  acts  of 
Congress  give  those  courts  no  jurisdiction  whatever  of 
offenses  committed  against  the  authority  of  a  State. 
Criminal  homicide,  committed  in  a  State,  is  an  offense 
against  the  authority  of  the  State." 

The  majority  doctrine  in  the  Davis  case  has,  how- 
ever, never  been  overruled.  The  federal  authority 
justified  by  it  has  indeed,  in  later  cases,  been  exercised 
in  ways  still  more  radical  when  looked  at  from  the 
standpoint  of  the  reserved  rights  of  the  States.  In 
the  Neagle  case  {In  re  Neagle,  135  U.  S.,  1)  it  was 
held  that,  without  express  statutory  authorization, 
the  general  authority  of  the  President  to  see  that  the 
laws  of  the  Union  are  faithfully  executed  empowers 
him  to  appoint  a  deputy  marshal  to  protect  a  federal 

106 


THE  SUPREMACY  OF  FEDERAL  LAW 


judge  whose  life  is  threatened;  and  that  upon  such 
deputy  being  arrested  and  brought  to  trial  in  a  state 
court  upon  the  charge  of  murder  for  a  homicide  com- 
mitted while  acting  within  the  line  of  the  duty  thus 
assigned  him,  he  is  entitled  to  have  his  case  removed 
to  the  federal  courts.  In  the  still  more  recent  case  of 
In  re  Waite  (81  Federal  Reporter,  359),  a  federal 
pension  agent,  convicted  in  a  state  court  of  fraud,  and 
the  conviction  affirmed  by  the  highest  court  of  the 
State,  was  released  by  a  habeas  corpus  by  a  federal 
district  judge. 

In  Tinsley  v.  Anderson  (171  U.  S.,  101),  decided 
in  1898,  however,  the  Supreme  Court  of  the  United 
States,  though  reaffirming  the  doctrine  previously  laid 
down  that  though  the  federal  courts  have  power,  by 
writ  of  habeas  corpus,  to  inquire  into  the  cause  of 
the  restraint  of  the  liberty  of  any  person  by  a  State 
when  the  justification  of  federal  authorization  is  set 
up  for  the  act  complained  of,  goes  on  to  say  that  the 
federal  courts  should  not,  except  in  cases  of  peculiar 
urgency,  exercise  that  power,  but  should  leave  such 
persons  to  pursue  their  remedy  by  writ  of  error  from 
the  federal  Supreme  Court  after  the  adjudication  of 
their  cases  in  the  State's  highest  courts. 

The  preceding  paragraphs  have  been  devoted  to  an 
exposition  of  the  principles  in  accordance  with  which 
the  United  States  government  has  demonstrated  its 
constitutional  competence  to  meet  every  form  of 
resistance  to  its  authority  whether  offered  by  an  indi- 
vidual or  individuals,  and  whether  supported  or  un- 
supported by  state  authority.  In  one  single  par- 
ticular, however,  it  would  seem  that  the  federal  courts 

107 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

are  at  present  without  that  legal  power  which  the 
position  of  the  United  States  before  the  world  as  a 
sovereign,  national  State  demands.  This  single  de- 
ficiency consists  in  its  inability  either  itself  to  furnish, 
or  to  compel  the  States  to  furnish,  legal  redress  to 
resident  aliens  for  injuries  to  life  or  property  suffered 
by  them  at  the  hands  of  American  citizens.  The  com- 
mission of  such  acts,  though  giving  rise  to  valid 
complaint  on  the  part  of  the  nations  whose  subjects 
are  injured,  are,  according  to  existing  American  law, 
offenses  against  the  laws  of  the  individual  States 
within  whose  borders  they  occur.  As  such  they  are 
not  punishable  in  the  courts  of  the  United  States,  and 
thus  in  a  number  of  instances  the  National  govern- 
ment has  felt  obliged  to  confess  to  foreign  nations 
that  it  is  without  the  legal  authority  to  furnish  that 
legal  redress  which  they  have  demanded.^ 

It  would  seem,  however,  that  this  incompetency  on 
the  part  of  the  Federal  Government  is  statutory 
rather  than  constitutional.  That  is  to  say,  there 
would  seem  to  be  no  valid  constitutional  objection  to 
an  act  of  Congress  giving  to  the  federal  courts  cog- 
nizance of  all  oft'enses  for  which  the  United  States 
may,  according  to  the  Law  of  Nations,  be  held  respon- 
sible to  foreign  powers.  In  fact,  the  passage  of  such 
a  law  has  been  more  than  once  suggested  to  Congress 

1  As  a  matter  of  fact  the  United  States  has  never  admitted  it 
to  be  a  principle  of  international  law  that  it  may  be  held  respon- 
sible to  foreign  powers  in  these  cases.  The  equity  of  their  de- 
mands it  has,  however,  several  times  recognized  by  appropriat- 
ing pecuniary  indemnities  to  the  families  of  those  killed,  as,  for 
example,  in  the  Spanish  riots  case  in  1851  and  in  the  Italian 
lynching  case  at  New  Orleans  in  1891. 

108 


THE  SUPREMACY  OF  FEDERAL  LAW 


by  the  President.  A  decision  of  the  Supreme  Court 
which  by  analogy  would  probably  sustain  such  legis- 
'lation  is  that  rendered  in  United  States  v.  Arjona 
(120  U.  S.,  479).  Arjona,  the  defendant,  was  indicted 
under  an  act  of  Congress  of  1884  providing  for  the 
punishment  of  persons  counterfeiting  the  securities 
of  foreign  governments.  Upon  the  constitutionality 
of  this  act  being  questioned  upon  the  ground  that, 
though  the  United  States  had  the  implied  right  to 
declare  criminal  the  counterfeiting  of  its  own  bonds 
and  notes,  it  had  not  the  power  thus  to  protect  those  of 
other  powers,  the  Supreme  Court,  in  its  opinion,  said: 
' '  The  National  Government  is  .  .  .  made  responsible  to 
foreign  nations  for  all  violations  by  the  United 
States  of  their  international  obligations,  and  be- 
cause of  this  Congress  is  expressly  authorized  'to  de- 
fine and  punish  .  .  .  offenses  against  the  law  of 
nations.'  .  .  .  Consequently  a  law  which  is  neces- 
sary and  proper  to  afford  this  protection  is  one  that 
Congress  may  enact  because  it  is  one  needed  to  carry 
into  execution  a  power  conferred  by  the  Constitution 
on  the  government  of  the  United  States  exclusively. 
There  is  no  authority  in  the  United  States  to  require 
the  passage  and  enforcement  of  such  a  law  by  the 
States.  Therefore,  the  United  States  must  have  the 
power  to  pass  it  and  enforce  it  themselves,  or  be 
unable  to  perform  a  duty  which  they  may  owe  to 
another  Nation  and  which  the  law  of  nations  has  im- 
posed on  them  as  part  of  their  international  obliga- 
tions. This,  however,  does  not  prevent  a  State  from 
providing  for  the  punishment  of  the  same  thing,  for 
here,  as  in  the  case  of  counterfeiting  the  coin  of  the 

109 


THE  AMERICAN  CONSTITUTIONAL   SYSTEM 

United  States,  the  act  may  be  an  offense  against  the 
authority  of  a  State,  as  well  as  that  of  the  United 
States."^ 

1  Cf.  on  this  whole  subject  the  essay  by  J.  I.  Chamberlain, 
"  The  Position  of  the  Federal  Government  of  the  United  States 
in  Regard  to  Crimes  Committed  against  the  Subjects  of  a  Foreign 
Nation  Within  the  States ; "  also  Reports  of  American  Bar  As- 
sociation for  1891,  1892,  1893;  Congressional  Record,  52d  Con- 
gress, 1st  Session,  1892;  Annual  Message  of  President,  Decem- 
ber, 1901. 


110 


CHAPTER   VI 

FEDERAL    CONTROL    OF    STATE    GOVERNMENTS 

In  what  has  gone  before,  the  sovereignty  of  the  United 
States  as  opposed  to  and  inconsistent  with  the  con- 
tinued sovereignty  of  its  individual  commonwealth 
members  has  been  sufficiently  declared.  Whatever 
doubt  there  may  have  been  as  to  this  before  the  Civil 
War,  the  result  of  that  gigantic  struggle  left  no  room 
for  subsequent  disagreement,  and  the  unequivocal 
assertions  of  the  federal  courts  simply  registered  con- 
clusions that  no  one  thereafter  could  rationally  ques- 
tion. Starting,  then,  from  this  fundamental  fact 
that,  looking  at  the  matter  from  a  purely  legal  stand- 
point, the  individual  Commonwealths  constitute 
simply  governmental  or  administrative  districts  of 
the  United  States,  we  shall  now  proceed  to  consider 
the  degree  of  autonomy  secured  them  by  the  fed- 
eral Constitution.  This  subject  we  may  conveniently 
divide  into  two  parts.  First,  we  may  examine  the  de- 
gree of  control  that  the  Federal  Government  may 
constitutionally  exercise  over  the  form  of  govern- 
ments that  the  several  States  may  establish  for  them- 
selves ;  and,  secondly,  the  extent  to  which  the  General 
Government  may  supervise  or  control  the  exercise  by 
the  States  of  those  powers  that  are  reserved  to  them, 

111 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

First,  then,  as  to  the  control  that  may  be  constitution- 
ally exercised  by  the  United  States  over  the  forms 
of  governments  of  its  constituent  units. 

Speaking  generally  it  may  be  said  that,  providing 
its  government  be  republican  in  form,  each  State  of 
the  Union  may  establish  such  governmental  organs 
as  it  sees  fit,  and  apportion  among  them  its  executive, 
legislative,  and  judicial  powers  according  to  its  own 
judgment  as  to  what  is  expedient  and  proper. 

The  federal  Constitution  provides  that ' '  The  United 
States  shall  guarantee  to  every  State  in  this  Union 
a  republican  form  of  government,  and  shall  protect 
each  of  them  against  invasion;  and  on  application  of 
the  legislatures,  or  of  the  executive  (when  the  legisla- 
ture cannot  be  convened)  against  domestic  violence." 
(Art.  IV,  sec.  4.) 

In  form,  the  lirst  clause  of  this  section  would  ap- 
pear to  be  for  the  benefit  of  the  States  and  to  impose 
a  duty  upon  the  Federal  Government,  and  such  un- 
doubtedly would  be  its  effect  should  a  foreign  power 
attempt  to  impose  a  government  of  any  sort  what- 
ever upon  the  people  of  one  of  the  States  against  their 
will;  or  should  a  domestic  revolution  result  in  the 
establishment  in  power  of  a  government  not  sanc- 
tioned by  law  or  not  freely  agreed  to  by  the  electorate. 
In  fact,  however,  as  we  have  already  seen,  and  as  will 
presently  be  more  particularly  spoken  of,  this  clause 
was  so  interpreted  during  reconstruction  times  as  to 
give  to  the  Federal  Government  an  almost  unlimited 
power  of  control  for  several  years  of  the  domestic 
affairs  of  those  States  that  had  been  in  rebellion 
against  its  authority. 

112 


FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 

It  will  be  noticed  that  the  Constitution  does  not 
itself  define  the  term  ''republican  form  of  govern- 
ment." It  has,  however,  always  been  an  accepted 
rule  of  construction  that  the  technical  and  special 
terms  used  in  the  Constitution  are  to  be  given  those 
meanings  which  they  had  at  the  time  that  instrument 
was  framed.  This  is  but  reasonable,  for,  in  default 
of  anything  to  the  contrary,  those  who  drafted  the 
Constitution  are  to  be  presumed  to  have  intended  the 
words  which  they  used  should  have  the  meaning  they 
knew  them  to  have.  For  a  definition,  then,  of  ''re- 
publican government"  we  must  discover  what  such  a 
political  form  was  considered  to  be  in  1787.  Certainly 
we  may  say  that  the  governments  of  the  thirteen 
original  States  as  they  existed  at  the  time  the  Con- 
stitution was  drafted  must  have  been  considered  as 
illustrating  the  republican  type.  Furthermore,  the 
constitutions  of  all  those  States  which  have  been  ad- 
mitted to  the  Union  since  1787  must  be  regarded  as 
having  been  impliedly  declared  republican  by  Con- 
gress at  the  time  of  the  giving  of  its  assent  to  their 
entrance  into  the  Union.  The  late  Judge  Cooley,  in 
his  "Principles  of  Constitutional  Law,"  i  has  perhaps 
defined  the  term  as  satisfactorily  as  any  one.  "By  a 
republican  form  of  government,"  he  says,  "is  under- 
stood a  government  by  representatives  chosen  by  the 
people;  and  it  contrasts  on  the  one  side  with  a  de- 
mocracy, in  which  the  people  or  community  as  an 
organized  whole  wield  the  sovereign  powers  of  gov- 
ernment, and,  on  the  other  side,  with  the  rule  of  one 
man  as  King,  Emperor,  Czar,  or  Sultan,  or  with  that 
^Chap.  XI. 
«  113 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

of  one  class  of  men,  as  an  aristocracy."  ^  "In  strict- 
ness," Judge  Cooley  goes  on  to  say,  "a  republican 
government  is  by  no  means  inconsistent  with  mo- 
narchical forms,  for  a  King  may  be  merely  an  heredi- 
tary or  elective  executive  while  the  powers  of  legisla- 
tion are  left  exclusively  to  a  representative  body 
freely  chosen  by  the  people.  It  is  to  be  observed,  how- 
ever, that  it  is  a  republican  form  of  government 
that  is  to  be  guaranteed;  and  in  the  light  of  the  un- 
doubted fact  that  by  the  Revolution  it  was  expected 
and  intended  to  throw  off  monarchical  and  aristo- 
cratic forms,  there  can  be  no  question  but  that  by  a 
republican  form  of  government  was  intended  a  gov- 
ernment in  which  not  only  would  the  people's  repre- 
sentatives make  the  laws,  and  their  agents  administer 
them,  but  the  people  would  also,  directly  or  indirectly, 
choose  the  executive.  But  it  would  by  no  means  fol- 
low that  the  whole  body  of  people,  or  even  the  whole 
body  of  adult  and  competent  persons,  would  be  ad- 
mitted to  political  privileges;  and  in  any  republican 

^In  some  of  the  courts  of  the  States  direct  legislation  laws 
(referendum)  have  been  held  unconstitutional  on  the  ground 
that  their  effect  is  to  establish  a  democratic  in  the  place  of  repub- 
lican, representative  government.  Thus,  for  example,  in  Rice  v. 
Foster,  4  Harr.,  479,  the  Court  of  Delaware  declared  :  "Although 
the  people  have  the  power,  in  conformity  with  its  provisions,  to 
alter  the  Constitution,  under  no  circumstances  can  they,  so  long 
as  the  Constitution  of  the  United  States  remains  the  paramount 
law  of  the  land,  establish  a  democracy  or  any  other  than  a  re- 
publican form  of  government ; "  and  the  giving  of  a  direct  legis- 
lative power  to  the  electorate,  the  court  went  on  to  hold,  was,  in 
effect,  to  establish  a  democracy.  In  Maynard  v.  Board,  84  Mich., 
228,  the  court  suggested  that  "cumulative"  voting  is  inconsis- 
tent with  a  republican  form  of  government. 

114 


FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 

State  the  law  must  determine  the  qualifications  for 
admission  to  the  elective  franchise." 

The  only  instance  in  which  the  Federal  Govern- 
ment had  been  called  upon,  before  the  Civil  War,  to 
construe  this  guaranty  clause  was  in  connection  with 
the  matter  of  Dorr's  Rebellion  in  Rhode  Island  in 
1841.  The  salient  facts  of  this  incident  were  these. 
The  constitution  under  which  the  people  of  Rhode 
Island  had  lived  since  the  separation  from  England 
provided  for  a  very  limited  suffrage.  With  the  de- 
velopment of  more  democratic  ideas  this  condition  of 
affairs  became  very  unsatisfactory  to  those  who  were 
thus  denied  the  right  to  vote.  Numerous  attempts 
were  made  to  have  the  constitution  amended,  but 
these  were  always  defeated  by  the  small  oligarchy  of 
legal  voters  who  did  not  wish  to  see  their  special 
privileges  extended.  Finally,  in  1841,  mass  meetings 
of  the  discontented  were  held,  and  without  any  in- 
struction or  permission  from  the  existing  government 
the  citizens  were  directed  to  elect,  by  a  universal 
manhood  suffrage,  delegates  to  a  constitutional  con- 
vention. This  was  done,  and  at  that  convention  a  con- 
stitution was  framed  that  later  was  adopted  by  a 
clear  majority  of  the  adult  resident  citizens  of  the 
State.  Thereupon,  the  convention,  meeting  again, 
declared:  "Whereas,  by  return  of  the  votes  upon  the 
Constitution,  it  satisfactorily  appears  that  the  citi- 
zens of  this  State,  in  their  original  sovereign  capa- 
city, have  ratified  and  adopted  said  Constitution  by 
a  large  majority ;  and  the  will  of  the  people,  thus  de- 
cisively known,  ought  to  be  implicitly  obeyed  and 
faithfully  executed;  We  do  therefore  resolve  and  de- 

115 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

clare  that  said  Constitution  rightfully  ought  to  be, 
and  is,  the  paramount  law  and  Constitution  of  the 
State  of  Rhode  Island  and  Providence  Plantations; 
and  we  further  resolve  and  declare  for  ourselves  and 
in  behalf  of  the  people  whom  we  represent,  that  we 
will  establish  said  Constitution  and  sustain  and  defend 
the  same  by  all  necessary  means."  Attempts  were 
actually  made  to  put  into  operation  the  government 
provided  for  in  the  instrument  thus  declared  in  force, 
Dorr  being  elected  Governor  under  it. 

All  of  the  above  acts,  it  will  be  observed,  were  un- 
sanctioned by  any  law  of  the  old  de  facto  government. 
Upon  an  appeal  being  made  by  that  government  to 
the  Federal  Government  for  aid,  the  President  of  the 
United  States  recognized  that  government  as  the  de 
jure  government  of  the  State  and  took  steps  to  extend 
the  aid  that  was  requested.  By  this  federal  executive 
action  two  important  facts  were  established  with  ref- 
erence to  the  "guaranty"  clause  of  the  federal  Con- 
stitution. The  iirst  of  these  was  that,  according  to 
this  clause,  the  Federal  Government  was  obligated  to 
protect  the  several  States  not  only  against  the  at- 
tempts of  foreign  powers  to  impose  upon  them  gov- 
ernments not  of  their  own  choosing,  but  against  revo- 
lutionary action  on  the  part  of  their  own  citizens. 
The  second  was  that  it  was  thus  decided  that  it  is  not 
a  violation  of  the  provision  that  a  state  government 
shall  be  republican  in  form  that  it  rested  upon  the 
legal  will  of  a  minority  of  its  adult  male  citizens.  In 
effect  it  was  determined  that  the  old  government  of 
Rhode  Island  being  accepted  as  republican  in  form 
at  the  time  that  the  State  became  a  member  of  the 

116 


FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 

Union,  it  could  not  be  changed  by  any  extra-legal 
means  against  the  desire  of  those  who  by  the  old 
instrument  were  given  the  sole  power  of  expressing 
the  legal  will  of  the  State.  This  last  clause  "against 
the  desire  of  those  who  by  the  old  instrument  were 
given  the  sole  power  of  expressing  the  legal  will  of 
the  State,"  is  advisedly  added,  for,  as  repeated  in- 
stances have  shown,  the  Federal  Government  has  not 
felt  itself  obligated  under  the  guaranty  clause  to  see 
to  it  that  none  of  the  state  constitutions  are  ever 
amended  or  replaced  by  new  instruments  except  in 
strict  accordance  with  the  provisions  governing  con- 
stitutional changes  existing  at  the  time  the  changes 
are  made.  When  such  changes,  even  though  brought 
about  in  a  manner  not  formally  constitutional,  have 
been  accepted  as  valid  by  the  old  governments,  the 
Federal  Government  has  not  felt  itself  obligated  to 
interfere.  But  when,  as  was  the  case  in  Rhode  Island, 
the  revolutionary  change  is  strenuously  resisted  by 
those  exercising  authority  under  the  old  instrument 
of  government,  the  Federal  Government,  upon  appeal 
to  it,  or  possibly  upon  its  own  initiative,  will  almost 
surely  consider  itself  called  upon  to  recognize  and 
support  the  old  government. 

Precedent  has  also  established  the  principle  that 
where  there  is  a  dispute  in  a  State  as  to  the  de  jure 
character  of  a  particular  organ  of  that  government, 
as  for  example  as  to  which  of  two  individuals  has 
been  elected  as  chief  executive,  or  which  of  two 
courts  or  legislatures  is  entitled  to  authority,  the  Fed- 
eral Government  will  not  ordinarily  interfere,  being 
governed  by  the  presumption  that  each  state  govern- 

117 


THE   AMERICAN   CONSTITUTIONAL  SYSTEM 

ment  has  within  itself  the  means  of  deciding  such  con- 
tests. In  some  cases,  however,  it  becomes  indirectly 
obligatory  upon  the  General  Government  to  decide 
the  matter.  This  occurs  when  the  action  of  state  or- 
gans, the  standing  of  which  is  in  dispute,  requires 
recognition  or  enforcement  by  the  federal  authorities. 
Thus,  for  instance,  should  each  of  two  contesting  state 
legislatures  select  and  send  Senators  to  Congress,  it 
would  be  necessary  for  the  United  States  Senate  to 
decide  which  of  the  electing  bodies  was  endowed  with 
authority  to  act  on  that  behalf  for  the  State. 

The  case  of  Luther  v.  Borden  (7  How.,  1),  decided 
by  the  Supreme  Court  in  1845,  arose  out  of  the  fol- 
lowing facts.  Borden,  acting  under  the  authority  of 
the  old  government  of  Rhode  Island,  had  broken  into 
the  house  of  Luther  who  was  at  the  time  engaged  in 
attempting  to  establish  the  government  provided  for 
by  the  Constitution  that  had  been  adopted  in  the 
popular,  extra-constitutional  manner  spoken  of  above. 
Upon  being  sued  in  trespass  by  Luther,  Borden  justi- 
fied himself  by  the  plea  that  he  was  acting  under  the 
authority  of  the  legal  government  of  the  State.  Lu- 
ther, upon  his  side,  denied  the  de  jure  character  of 
that  government,  and,  therefore,  its  legal  competence 
to  empower  Borden  to  exercise  the  authority  he  did. 
Thus  the  question  as  to  which  of  the  two  governments 
was  at  that  time  the  legal  government  of  the  State 
seemed  squarely  presented  to  the  Court.  That  tri- 
bunal, however,  did  not  feel  itself  obliged  to  pass  upon 
the  point,  holding  that  the  power  to  determine  such  a 
matter  had  been  given  by  the  Constitution  to  Con- 
gress, and  by  that  body  had  been  handed  over,  to  the 

118 


FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 

extent  at  least  of  determining  when  the  Federal  Gov- 
ernment should  interfere,  to  the  President.  In  the 
case  at  bar  the  President  had  recognized  the  legality 
of  the  old  government  and  the  propriety  of  this  de- 
cision the  Court  declared  it  could  not  consider.^ 

When  dealing  with  the  subject  of  the  readmission 
of  the  Southern  States  to  federal  privileges,  we  ad- 
verted to  the  fact  that,  acting  under  the  authority 
assumed  to  be  given  it  by  the  guaranty  clause,  Con- 
gress assumed  an  almost  complete  control  over  the 

1  "Under  this  article  of  the  Constitution,"  said  the  Court,  "it 
rests  with  Congress  to  decide  what  government  is  the  estab- 
lished one  in  a  State.  For  as  the  United  States  guarantee  to 
each  State  a  republican  government,  Congress  must  necessarily 
decide  what  government  is  established  in  the  State  before  it  can 
be  determined  whether  it  is  republican  or  not.  And  when  the 
Senators  and  Eepresentatives  of  a  State  are  admitted  into  the 
councils  of  the  Union,  the  authority  of  the  government  under 
which  they  are  appointed,  as  well  as  its  republican  character,  is 
recognized  by  the  proper  constitutional  authority.  And  its  de- 
cision is  binding  on  every  other  department  of  the  government, 
and  could  not  be  questioned  in  a  judicial  tribunal.  .  .  .  So,  too, 
as  relates  to  the  clause  in  the  above-mentioned  article  of  the 
Constitution,  providing  for  cases  of  domestic  violence.  It  rested 
with  Congress,  too,  to  determine  upon  the  means  proper  to  be 
adopted  to  fulfil  this  guarantee.  They  might,  if  they  had  deemed 
it  most  advisable  to  do  so,  have  placed  it  in  the  power  of  a  court 
to  decide  when  the  contingency  had  happened  which  required 
the  Federal  Government  to  interfere.  But  Congress  thought 
otherwise.  ...  By  this  act  (of  February  28,  1795)  the  power  of 
deciding  whether  the  exigency  had  arisen  upon  which  the  govern- 
ment of  the  United  States  is  bound  to  interfere,  is  given  to  the 
President.  .  .  .  And  the  President  must,  of  necessity,  decide 
which  is  the  government,  and  which  party  is  unlawfully  arrayed 
against  it,  before  he  can  perform  the  duty  imposed  upon  him  by 
the  act  of  Congress." 

119 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

reconstruction  of  governments  in  those  States.  There 
can  be  no  question,  however,  but  that  in  doing  so  an 
interpretation  was  given  to  that  clause  which  it  is  very 
difficult,  upon  strict  principles  of  construction,  to 
justify.  Practical  exigencies  may  have  necessitated 
the  federal  authority  that  was  exercised,  but  that  vio- 
lence was  done  to  the  meaning  of  this  clause  must  be 
admitted.  A  fair  interpretation  of  this  clause  would 
have  given  to  the  Federal  Government  at  the  most 
nothing  more  than  the  right  to  assist  the  citizens  of 
the  several  States  in  establishing  and  maintaining 
governments  republican  in  form  and  loyal  to  the 
Union.  When  this  clause  was  discussed  in  the  Con- 
stitutional Convention  of  1787  it  was  explained  by  one 
member  that  its  object  was  "merely  to  secure  the 
States  against  dangerous  commotions,  insurrections, 
and  rebellions ; ' '  and  Madison,  writing  in  the  ' '  Feder- 
alist, ' '  said :  "It  may  possibly  be  asked  what  need 
there  could  be  of  such  a  precaution,  and  whether  it 
may  not  become  a  pretext  for  alteration  in  the  state 
governments  without  the  concurrence  of  the  States 
themselves.  These  questions  admit  of  ready  answers. 
If  the  interposition  of  the  General  Government  should 
not  be  needed,  the  provision  for  such  an  event  will  be 
a  harmless  superfluity  only  in  the  Constitution.  But 
who  can  say  what  experiments  may  be  produced  by 
the  caprice  of  particular  States,  by  the  ambition  of 
enterprising  leaders,  or  by  the  intrigues  and  influence 
of  foreign  powers'?  To  the  second  question  it  may 
be  answered,  that  if  the  General  Government  should 
interpose  by  virtue  of  this  constitutional  authority,  it 
will  be  of  course  bound  to  pursue  the  authority.    But 

120 


FEDERAL  CONTROL  OF  STATE  GOVERNMENTS 


the  authority  extends  no  further  than  a  guaraniy  of 
a  republican  form  of  government,  which  supposes  a 
preexisting  governmeni  of  the  form  which  is  to  he 
guaranteed.^  As  long,  therefore,  as  the  existing  re- 
publican forms  are  continued  by  the  States,  they  are 
guaranteed  by  the  federal  Constitution.  Whenever 
the  States  may  choose  to  substitute  other  republican 
forms,  they  have  a  right  to  do  so,  and  to  claim  the 
federal  guaranty  for  the  latter.  The  only  restriction 
imposed  on  them  is,  that  they  shall  not  exchange  re- 
publican for  anti-republican  constitutions;  a  restric- 
tion, which,  it  is  presumed,  will  hardly  be  considered 
as  a  grievance." 

Instead,  however,  of  guaranteeing  existing  govern- 
ments in  the  Southern  States,  or  of  assisting  their  citi- 
zens in  establishing  republican  governments,  the 
Federal  Government,  in  pursuance  of  the  various  Re- 
construction Acts  passed  by  Congress,  went  on  itself 
to  assume  the  practical  control  of  the  establishment 
of  new  governments  which  they  imposed  upon  the 
States  against  the  will  of  the  great  bulk  of  their  citi- 
zens. Furthermore,  Congress  even  then  refused  to 
admit  the  States  to  a  full  enjoyment  of  constitutional 
rights  until  they  had  amended  their  constitutions  in 
certain  specific  ways,  and  ratified  the  Fourteenth  and 
Fifteenth  Amendments  to  the  federal  Constitution. 
In  so  doing,  not  only  was  violence  done  to  the  guar- 
anty clause,  but  the  States  in  question  were  deprived 
of  that  equality  with  the  other  States  of  the  Union  to 
which  they  were  constitutionally  entitled. 

1  Italics  our  own. 

121 


CHAPTER  VII 

FEDERAL  AND  STATE  AUTONOMY 

The  general  principle  governing  the  exercise  of  gov- 
ernmental powers  in  the  American  State  is  that  the 
powers  of  the  Federal  Government  and  those  of  the 
individual  States  shall  be  kept  as  distinct  and  inde- 
pendent as  possible.  Thus,  as  differing  from  almost 
all,  if  not  all,  of  the  other  federal  States  of  the  world, 
there  is  provided  in  the  American  State  a  complete 
governmental  machinery  fully  equipped  with  its  own 
officials  for  the  exercise  of  the  powers  of  the  Central 
Government,  and,  distinct  therefrom,  an  equally  com- 
plete governmental  machinery  in  each  of  the  constitu- 
ent Commonwealths  for  the  performance  of  their  sev- 
eral functions. 

This  separation  of  the  federal  and  state  authorities 
and  magistracies  is  maintained  by  the  enforcement  of 
the  following  rules: 

First,  no  individual  Commonwealth  is  permitted  in 
any  way  to  interfere  with  the  operation  of  a  federal 
governmental  organ  when  operating  within  its  consti- 
tutional province;  nor,  on  the  other  hand,  may  the 
United  States  interfere  in  any  way  with  the  exercise 
by  a  State  of  any  one  of  its  constitutional  powers. 

122 


FEDERAL  AND  STATE  AUTONOMY 

When,  however,  there  is  an  apparent  conflict  of  pow- 
ers, the  conflict,  as  we  have  already  learned,  is  consid- 
ered, in  the  last  instance,  by  the  federal  Supreme 
Court ;  and  where  the  conflict  is  shown  to  be  real,  the 
State  has  to  yield  to  the  United  States. 

Secondly,  it  is  held  that  though  it  is  constitutional 
for  the  United  States  to  permit  or  even  to  request  a 
state  official  to  perform  a  federal  service,  such  state 
official  cannot  be  compelled  to  do  so.  The  same  is  true 
as  to  the  performance  by  a  federal  official  of  a  state 
duty.  The  reason  for  this  rule  has  been  declared  to 
be  that  otherwise  it  would  be  theoretically  possible  for 
the  one  government  so  to  burden  with  its  own  duties 
the  officials  of  the  other  government  as  seriously  to 
interfere  with  the  proper  performance  by  those  offi- 
cials of  the  duties  laid  upon  them  by  their  own  gov- 
ernments. 

That  a  State  may  not  interfere  with  a  federal 
agency  was  settled  once  for  all  by  the  decision  of  the 
Supreme  Court  in  McCulloch  v.  Maryland.  This  case 
was  all  the  stronger  in  that  the  federal  agency,  with 
whose  activity  it  was  alleged  that  Maryland  had  at- 
tempted to  interfere  by  taxing  it,  was  not  an  agency 
absolutely  essential  to  the  National  Government  nor 
expressly  provided  for  by  the  Constitution.  The 
power  to  establish  a  National  Bank  was  at  most  only 
an  implied  one,  and,  in  fact,  its  constitutionality  was 
very  widely  denied,  and  years  after  this,  a  bill  pro- 
viding for  the  establishment  by  the  National  Govern- 
ment of  a  similar  institution  was  vetoed  by  President 
Jackson  upon  the  ground  of  its  unconstitutionality. 
But  in  this  case  Maryland  had  not  only  denied  the 

123 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

constitutionality  of  the  bank  but  had  taken  the  posi- 
tion that,  even  were  it  constitutional,  she  had,  under 
the  general  power  reserved  to  her  of  taxing  all  prop- 
erty situated  within  her  territorial  limits,  the  right 
to  tax  such  branches  of  the  bank  as  might  be  located 
within  her  borders.  Thus,  in  this  case,  the  State  of 
Maryland  did  not  claim  that  she  might  directly  and 
deliberately  interfere  with  the  operation  of  a  federal 
law,  but  that  the  exercise  by  her  of  an  otherwise  le- 
gitimate authority  could  not  be  declared  unconstitu- 
tional simply  upon  the  ground  that,  indirectly,  or  by 
remote  possibility,  its  effect  was,  or  might  be,  to  in- 
terfere with  the  exercise  of  a  legitimate  federal  power. 
In  other  words,  the  State  took  the  ground  that,  though, 
as  occupying  spheres  of  authority  distinct  from  that 
of  the  Union,  the  States  might  not  directly  interfere 
with  the  exercise  of  the  constitutional  powers  of  the 
General  Government,  yet,  while  acting  within  their 
reserved  spheres  of  authority,  the  States  were  as  in- 
dependent and  sovereign  as  was  the  Union  while 
operating  within  its  constitutional  sphere;  and  that, 
therefore,  their  direct  interests,  within  such  spheres, 
might  not  properly  be  subordinated  to  the  merely  in- 
direct interests  of  the  Union.  This  position  the  Su- 
preme Court  declared  an  invalid  one.  The  reasoning 
of  Marshall,  who  rendered  the  opinion,  was  as  follows: 
"The  sovereignty  of  a  State,"  he  declared,  "extends 
to  everything  which  exists  by  its  own  authority,  or  is 
introduced  by  its  permission;  but  does  it  extend  to 
those  means  which  are  employed  by  Congress  to  carry 
into  execution  powers  conferred  on  that  body  by  the 
people  of  the  United  States  ?    We  think  it  demonstra- 

124 


FEDERAL  AND  STATE  AUTONOMY 


ble  that  it  does  not.  Those  powers  are  not  given  by 
the  people  of  a  single  State.  They  are  given  by  the 
people  of  the  United  States  to  a  government  whose 
laws,  made  in  pnrsuanee  of  the  Constitution,  are  de- 
clared to  be  supreme."  Then,  after  referring  to  the 
fact  that  the  power  to  tax  might  be  used  to  destroy, 
he  continued:  "That  there  is  a  plain  repugnance  in 
conferring  on  one  government  power  to  control  the 
constitutional  measures  of  another,  which  other  with 
respect  to  those  very  measures  is  declared  supreme 
over  that  which  exerts  the  control  .  .  .  [is  a]  propo- 
sition not  to  be  denied.  ...  If  the  States  may  tax 
one  instrument  employed  by  the  government  in  the 
execution  of  its  powers,  they  may  tax  any  and  every 
instrument.  They  may  tax  the  mail;  they  may  tax 
the  mint;  they  may  tax  patent  rights;  they  may  tax 
the  papers  of  the  custom-house ;  they  may  tax  judicial 
processes;  they  may  tax  all  the  means  employed  by 
the  government  to  an  excess  which  would  defeat  all 
the  ends  of  government.  This  was  not  intended  by 
the  American  people.  They  did  not  design  to  make 
their  government  dependent  on  the  States.  .  .  .  The 
Court  has  bestowed  on  this  subject  its  most  deliberate 
consideration.  The  result  is  a  conviction  that  the 
States  have  no  power  by  taxation,  or  otherivise,  to 
retard,  impede,  burden,  or  in  any  manner  control  the 
operations  of  the  constitutional  laws  enacted  by  Con- 
gress to  carry  into  execution  the  powers  vested  in  the 
General  Government.  This  is,  we  think,  the  unavoid- 
able consequence  of  that  supremacy  which  the  Consti- 
tution has  declared." 

In  subsequent   cases,   following   out   the   principle 

125 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

thus  laid  down,  the  Supreme  Court  has  declared  that 
the  States  may  not  tax  the  salary  or  emoluments  of 
an  officer  of  the  United  States  (Dobbins  v.  Commis- 
sioners of  Erie  Co.,  16  Pet.,  435),  nor  United  States 
bonds  (Weston  v.  Charleston,  2  Pet.,  449),  nor  inter- 
state commerce  (Brown  v.  Maryland,  12  Wh.,  419). 
Attempts  have  been  made  to  push  this  freedom  of 
federal  officials  from  state  interference  to  an  extent 
which,  if  logically  followed  out,  would  place  them  al- 
most wholly  outside  of  the  control  of  the  ordinary 
laws  of  the  State.  Thus  it  was  asserted  that  a  State 
might  not  even  tax  the  private  property  of  a  federal 
official,  though  this  property  were  in  no  way  concerned 
with  the  exercise  of  his  federal  duties  by  that  official. 
But  this  extension  of  the  principle  the  Supreme  Court 
refused  to  sanction.  In  National  Bank  v.  Common- 
wealth (9  Wall.,  353)  it  declared:  "It  certainly  can- 
not be  maintained  that  banks  or  other  corporations  or 
instrumentalities  of  the  government  are  to  be  wholly 
withdrawn  from  the  operation  of  state  legislation. 
The  most  important  agents  of  the  Federal  Government 
are  its  officers,  but  no  one  will  contend  that  when 
a  man  becomes  an  officer  of  the  government  he  ceases 
to  be  subject  to  the  laws  of  the  State.  The  principle 
we  are  discussing  has  its  limitation,  a  limitation  grow- 
ing out  of  the  necessity  on  which  the  principle  itself 
is  founded.  That  limitation  is  that  the  agencies  of 
the  Federal  Government  are  only  exempted  from 
state  legislation,  so  far  as  the  legislation  may  interfere 
with  or  impair  their  efficiency  in  performing  the 
functions  by  which  they  are  designed  to  serve  that 
government.     Any  other  rule  would  convert  a  prin- 

126 


FEDERAL  AND  STATE  AUTONOMY 

ciple  founded  alone  in  the  necessity  of  securing  to 
the  government  of  the  United  States  the  means  of 
exercising  its  legitimate  powers,  into  an  unauthorized 
and  unjustifiable  invasion  of  the  rights  of  the  States. 
The  salary  of  a  federal  officer  may  not  be  taxed;  he 
may  be  exempted  from  any  personal  service  which 
will  interfere  with  the  discharge  of  his  official  duties, 
because  those  exemptions  are  essential  to  enable  him 
to  perform  those  duties.  But  he  is  subject  to  all  the 
laws  of  the  State  which  affect  his  family  or  social  re- 
lations, or  his  property,  and  he  is  liable  to  punishment 
for  crime,  though  that  punishment  be  imprisonment 
or  death.  So  of  the  [federal]  banks.  They  are  sub- 
ject to  the  laws  of  the  State,  and  are  governed  in  their 
daily  course  of  business  far  more  by  the  laws  of  the 
State  than  of  the  Nation.  All  their  contracts  are  gov- 
erned and  construed  by  state  laws.  Their  acquisition 
and  transfer  of  property,  their  right  to  collect  their 
debts,  and  their  liability  to  be  sued  for  debts,  are  all 
based  on  state  law.  It  is  only  when  the  State  inca- 
pacitates the  banks  from  discharging  their  duties  to 
the  government  that  it  becomes  unconstitutional." 

In  the  case  of  the  Union  Pacific  Ry.  v.  Peniston  (18 
Wall.,  5)  the  Court  again  laid  down  the  following 
principle  according  to  which  should  be  judged  the  con- 
stitutionality of  state  taxation  laws  the  effect  of  which 
might  be  more  or  less  remotely  to  affect  federal  agen- 
cies. "It  cannot  be,"  the  court  said,  "that  a  state 
tax  which  remotely  affects  the  efficient  exercise  of  a 
federal  power  is  for  that  reason  alone  inhibited  by 
the  Constitution.  To  hold  that  would  be  to  deny  to 
the  State  all  power  to  tax  persons  or  property.  Every 
*■  127 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

tax  levied  by  a  State  withdraws  from  the  reach  of 
federal  taxation  a  portion  of  the  property  from  which 
it  is  taken,  and  to  that  extent  diminishes  the  subject 
upon  which  federal  taxes  may  be  laid.  The  States 
are,  and  they  ever  must  be,  coexistent  with  the  Na- 
tional Government.  Neither  may  destroy  the  other. 
Hence  the  federal  Constitution  must  receive  a  practi- 
cal construction.  Its  limitations  and  its  implied  pro- 
hibitions must  not  be  extended  so  far  as  to  destroy 
the  necessary  powers  of  the  States,  or  prevent  their 
efficient  exercise.  ...  It  is  therefore  manifest  that 
exemption  of  federal  agencies  from  state  taxation  is 
dependent,  not  upon  the  nature  of  the  agents,  or  upon 
the  mode  of  their  constitution,  or  upon  the  fact  that 
they  are  agents,  but  upon  the  effect  of  the  tax;  that 
is,  upon  the  question  whether  the  tax  does  in  truth 
deprive  them  of  power  to  serve  the  government  as  they 
are  intended  to  serve  it,  or  does  hinder  the  efficient 
exercise  of  their  power.  A  tax  upon  their  property 
has  no  such  necessary  effect.  It  leaves  them  free  to 
discharge  the  duties  they  have  undertaken  to  perform. 
A  tax  upon  their  operations  is  a  direct  obstruction  to 
the  exercise  of  federal  powers."^ 

^  The  respective  spheres  of  the  federal  and  state  governments 
have  been  most  carefully  worked  out  by  the  courts  in  connection 
with  the  subject  of  interstate  commerce  with  a  result  perfectly 
in  accord  with  the  principle  above  stated.  Thus  it  has  been 
held  that  the  control  of  interstate  commerce  being  given  to  the 
Federal  Government,  the  States  may  not  interfere  either  by  way 
of  taxation  or  by  an  exercise  of  their  so-called  "  Police  Powers." 
They  may,  however,  it  has  been  decided,  tax  simply  as  property 
those  instruments  of  interstate  commerce  that  are  located  within 
their  respective  territorial  limits.     Also  it  has  been  held  that 

128  * 


FEDERAL  AND  STATE  AUTONOMY 

Just  as  it  has  been  held  that  the  State  may  not  in- 
terfere with  the  operation  of  a  federal  organ  or  the 
exercise  of  his  duty  by  a  federal  official,  so,  recipro- 
cally, it  has  been  held  that  the  United  States  may  not 
arbitrarily  interfere  with  a  state  official  or  with  the 
operation  of  a  state  organ.  Such  an  interference  has 
been  held  justified  only  when  necessary  for  the  effi- 
cient performance  of  some  constitutional  duty  of  its 
own. 

It  will  be  seen  that  though  every  effort  is  made 
to  keep  the  governments  of  the  States  and  of  the 
Union  as  free  as  possible  from  the  interference  of  the 
one  by  the  other,  the  two  governments  do  not  stand 
upon  exactly  the  same  plane  of  authority ;  for 
whereas  a  State  may  not,  even  in  the  direct  and  in- 
genuous exercise  of  one  of  its  constitutional  powers, 
interfere  indirectly  with  a  federal  officer  or  organ,  the 
Federal  Government  may  interfere  directly  with  a 
state  agency  if  by  so  doing  the  efficient  exercise  of 
one  of  its  own  constitutional  powers  be  advanced. 
Thus  the  Supreme  Court  held  in  Veazie  Bank  v. 
Fenno  (8  Wall.,  533)  that  in  order  to  regulate  the 
currency  of  the  country,  the  United  States  might, 
under  its  right  to  regulate  the  currency  of  the  coun- 
try, constitutionally  levy  a  tax  upon  the  circulating 
notes  of  state  banks  for  the  purpose  of  driving  them 

the  value  of  such  property  for  taxation  may  be  determined  by 
the  use  to  which  it  is  put,  namely,  for  the  interstate  transporta- 
tion of  persons  and  merchandise  (Adams  Express  Co.  v.  Ohio 
State  Auditor,  165  U.  S.,  194).  Every  attempt  upon  the  part  of 
the  States  to  do  more  than  this,  however,  and  to  interfere  with 
the  actual  carrying  on  of  interstate  commerce,  has  been  defeated 
by  the  federal  courts. 

9  129 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

out  of  existence,  even  though  it  had  previously  de- 
clared in  one  of  the  decisions  of  that  Court  itself,  that 
the  States  had  the  constitutional  right  to  charter  such 
banks  (Briscoe  v.  Bank  of  Kentucky,  11  Pet.,  257). 

But  here  also  the  Supreme  Court  has  declared  that 
the  principle  shall  not  be  extended  to  an  illegitimate 
extent.  In  the  case  of  Collector  v.  Day  (11  Wall., 
113)  it  held  that  the  Federal  Government  could  not 
levy  an  income  tax  upon  the  salaries  of  state  officials, 
and  in  justifying  its  decision  took  the  ground  that  a 
distinction  is  to  be  made  between  those  agencies  of  the 
States,  the  existence  and  free  operation  of  which  are 
essential  to  th^'ir  efficient  operation,  and  those  which, 
though  of  value  to  them,  are  not  essential  to  their 
welfare.  The  former,  it  held,  might  not  be  inter- 
fered with  by  the  General  Government,  but  the  latter 
might.  In  the  opinion  rendered  in  this  case  attention 
was  called  to  the  fact  that  in  the  case  of  Veazie  Bank 
V.  Fenno,  the  existence  of  this  distinction  was  sug- 
gested, the  Court  saying  in  that  case  with  reference 
to  the  question  whether  there  might  not  be  a  tax  on 
a  state  agency  that  Congress  could  not  constitutionally 
levy:  "We  do  not  say  that  there  may  not  be  such  a 
tax.  It  may  be  admitted  that  the  reserved  rights  of 
the  States,  such  as  the  right  to  pass  laws,  to  give  effect 
to  laws  through  executive  action,  to  administer  justice 
through  the  courts,  and  to  employ  all  necessary  agen- 
cies for  the  legitimate  purposes  of  state  government, 
are  not  proper  subjects  of  the  taxing  power  of  Con- 
gress." And  in  Collector  v.  Day  the  Court  said:  "If 
the  means  and  instrumentalities  employed  by  that 
[the  General]  Government  to  carry  into  operation  the 

130 


FEDERAL  AND  STATE  AUTONOMY 

powers  granted  to  it  are,  necessarily,  and,  for  the 
sake  of  self-preservation,  exempt  from  taxation  by  the 
States,  why  are  not  those  of  the  States  depending 
upon  their  reserved  powers,  for  like  reasons,  equally 
exempt  from  federal  taxation?  Their  unimpaired  ex- 
istence in  the  one  case  is  as  essential  as  in  the  other. 
It  is  admitted  that  there  is  no  express  provision  in 
the  Constitution  that  prohibits  the  General  Govern- 
ment from  taxing  the  means  and  instrumentalities  of 
the  States,  nor  is  there  any  prohibiting  the  States  from 
taxing  the  means  and  instrumentalities  of  that  gov- 
ernment. In  both  cases  the  exemption  rests  upon 
necessary  implication,  and  is  upheld  by  the  great  law 
of  self-preservation, — as  any  government,  whose 
means  employed  in  conducting  its  operations,  if  sub- 
ject to  the  control  of  another  and  distinct  government, 
can  exist  only  at  the  mercy  of  that  government.  Of 
what  avail  are  these  means  if  another  power  may  tax 
them  at  discretion?" 

This  relation  of  the  federal  power  to  state  govern- 
mental instrumentalities  has  been  further  illustrated 
in  the  matter  of  the  Federal  Government's  right  of 
Eminent  Domain,  it  having  been  held  that  the  General 
Government  has  an  implied  right  of  eminent  domain 
which  it  may  exercise  within  a  State  with  or  without 
that  State's  consent  (Monongahela  Navigation  Co.  v. 
U.  S.,  148  U.  S.,  312;  Chappell  v.  U.  S.,  160  U.  S., 
499),  but  that  it  may  not,  in  so  doing,  take  for  its  own 
use  land  or  other  property  employed  by  the  State  in 
performance  of  its  essential  governmental  functions. 

Though,  as  we  have  seen,  it  is  a  general  principle 
of  the  American  Constitutional  system  that  the  fed- 

131 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

eral  and  state  governments  shall  interpret  and  en- 
force their  own  laws  respectively,  there  is  one  impor- 
tant exception  to  this  rule.  This  exception  is  that  to 
the  federal  courts  is  given  by  the  Constitution  juris- 
diction of  all  suits  between  two  or  more  States, 
between  a  State,  as  plaintiff,  and  citizens  of  another 
State,  between  citizens  of  different  States,  between 
citizens  of  the  same  State  claiming  lands  under  grants 
of  different  States,  and  between  a  State,  or  the  citizens 
thereof,  and  foreign  States,  citizens  or  subjects.  Thus 
it  happens  that  the  federal  courts,  obtaining  jurisdic- 
tion simply  because  of  the  character  of  the  parties,  are 
very  frequently  called  upon  to  decide  cases  involving 
the  construction  and  enforcement  of  state  laws,  and 
are  thus  called  upon,  as  it  w^ere,  to  take  the  place  of 
the  state  judicial  tribunals.  From  the  very  beginning, 
however,  the  federal  courts,  when  so  acting,  have  con- 
sidered themselves  as  but  quoad  hoc  agents  of  the 
States  and  as  such  have  almost  uniformly  held  them- 
selves obligated  to  follow  in  their  construction  of  the 
state  laws  the  interpretations  given  to  them  by  the 
courts  of  the  State  that  enacted  them.  Thus  the  Ju- 
diciary Act  of  1789  declared  (Sec.  34)  :  "The  laws  of 
the  several  States  except  where  the  Constitution, 
treaties,  or  statutes  of  the  United  States  shall  other- 
Avise  require  or  provide,  shall  be  regarded  as  rules  of 
decision  in  the  trials  at  common  law  in  the  courts  of 
the  United  States  in  cases  where  they  apply."  And  in 
Elmendorf  v.  Taylor  (10  Wh.,  152)  Marshall  said: 
' '  The  judicial  department  of  every  government,  where 
such  a  department  exists,  is  the  appropriate  organ  for 
construing  the  legislative  acts  of  that  government. 

132 


FEDERAL  AND  STATE  AUTONOMY 

...  On  this  principle  the  construction  given  by  this 
court  to  the  Constitution  and  laws  of  the  United  States 
is  received  by  all  as  the  true  construction;  and  on 
the  same  principle  the  construction  given  by  the 
courts  of  the  several  States  to  the  legislative  acts  of 
those  States  is  received  as  true,  unless  they  come  in 
conflict  with  the  Constitution,  laws,  and  treaties  of 
the  United  States."  Again,  in  Shelby  v.  Guy  ^(11 
"Wh.,  361)  the  Supreme  Court  declared:  ''Nor  is  it 
questionable  that  a  fixed  and  received  construction  of 
their  respective  statute  laws  in  their  own  courts  makes, 
in  fact,  a  part  of  the  statute  law  of  the  country,  how- 
ever we  may  doubt  the  propriety  of  that  construction. 
It  is  obvious  that  this  admission  may  at  times  involve 
us  in  seeming  inconsistencies,  as  when  States  have 
adopted  the  same  statutes  and  their  courts  differ  in 
their  construction.  Yet  that  course  is  necessarily  in- 
dicated by  the  duty  imposed  on  us  to  administer,  as 
between  certain  individuals,  the  laws  of  their  respec- 
tive States  according  to  the  best  lights  we  possess  of 
what  those  laws  are."  In  Green  v.  Neal  (6  Pet.,  291) 
it  was  held  that  where  a  state  court  had  changed  its 
former  construction  of  law,  the  federal  courts,  upon 
a  subsequent  case  coming  before  them  should  do  like- 
wise and  thus  keep  ever  in  accord  with  the  latest 
decisions  of  the  state  courts. 

There  are,  however,  certain  classes  of  cases  in  which 
the  federal  courts  have  not  held  themselves  bound  to 
follow  state  precedents,  and  have  thus  built  up  for 
themselves  what  may  be  called  a  federal  common  law 
as  to  the  subjects  concerned.  Thus  they  have  followed 
this  practice  as  to  general  principles  of  criminal  law, 

133 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


commercial  law,  and  equity  jurisprudence.  Also  the 
federal  courts  upon  a  few  occasions  have  declined  to 
follow  the  last  decisions  of  the  state  courts  reversing 
former  decisions,  when  to  do  so  would  have  been  to 
render  void  contracts  entered  into  upon  the  faith  of 
the  first  decisions/ 

1  Cf.  Gelpcke  v.  Dubuque,  1  Wall.,  175,  and  McCullough  v. 
Virginia,  172  U.  S.,  102. 


134 


CHAPTER  VIII 

FEDERAL   AND   STATE   POWERS 

From  the  control  that  the  Federal  Government  may 
constitutionally  exercise  over  the  form  of  the  govern- 
ments of  the  several  States,  we  now  turn  to  a  consid- 
eration of  the  general  principles  in  accordance  with 
which  the  powers  of  government  are  divided  between 
the  federal  and  state  governments. 

In  the  American  State  the  totality  of  governmental 
powers  is  divided  into  the  following  classes: 

1.  The  powers,  the  exclusive  exercise  of  which  is 
delegated  to  the  General  Government. 

2.  The  powers— commonly  called  ''concurrent"— 
that  may  be  exercised  by  the  General  Government,  but 
which,  when  not  so  exercised,  may  be  exercised  by  the 
individual  States. 

3.  The  powers,  the  exercise  of  which  is  prohibited 
to  the  General  Government. 

4.  The  powers,  the  exclusive  exercise  of  which  is  re- 
served to  the  several  States. 

5.  The  powers,  the  exercise  of  which  is  prohibited 
to  the  States. 

From  the  above  it  will  be  seen  that  the  powers  of 
the  Federal  Government  are  embraced  within  the  first 

135 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

two  classes— the  distinction  between  the  two  classes 
being  merely  that  the  exercise  of  the  powers  of  the 
first  class  is  exclusively  vested  in  the  General  Govern- 
ment, while  those  of  the  second  may,  in  default  of 
federal  exercise,  be  made  use  of  by  the  States. 

Some  of  the  powers  granted  by  the  Constitution  to 
the  general  government  are  expressly  denied  to  the 
States.  As  to  the  exclusive  character  of  the  federal 
jurisdiction  over  them  there  cannot  be,  of  course,  any 
question.  It  has,  however,  been  often  a  matter  diffi- 
cult of  determination  whether  or  not  various  of  the 
powers  given  to  the  United  States,  but  not  expressly 
made  exclusive  or  denied  to  the  States,  are  so  exclu- 
sively subject  to  federal  control  that  no  exercise  of 
them  by  the  States  is  under  any  circumstances  per- 
missible. Shortly  stated,  the  Supreme  Court  has 
guided  itself  in  these  cases  by  the  following  principle. 
As  regards  generally  the  powers  granted  to  the  Na- 
tional Government  it  has  held  that  there  is  a  differ- 
ence between  those  which  are  of  such  a  character  that 
the  exercise  of  them  by  the  States  would  be,  under 
any  circumstances,  inconsistent  with  the  general  the- 
ory or  national  polity  of  the  Constitution,  and  those 
not  of  such  a  character.  As  regards  this  latter  class, 
the  Supreme  Court  has  held  that  as  long  as  Congress 
does  not  see  fit  to  exercise  them,  the  States  may  do  so. 
Any  laws  thus  passed  by  the  States  are,  however, 
of  course  subject  to  abrogation  at  any  time  by  the 
enactment  by  Congress  of  laws  governing  the  same 
subjects.^ 

^  By  the  enactment  of  a  federal  law  a  state  law  governing  the 
same  subject  is  not  nullified  but  merely  suspended  during  the 

136 


FEDERAL   AND   STATE   POWERS 

In  the  early  case  of  Sturges  v.  Crowninshield  (4 
Wh.,  122)  Chief  Justice  Marshall,  in  reference  to  the 
matter  of  bankruptcy,  laid  down  this  distinction  of 
which  we  have  been  speaking,  between  the  exclusive 
and  concurrent  powers  of  the  Federal  Government. 
But  it  is  especially  in  connection  with  the  subject  of 
Interstate  Commerce  that  the  principles  governing 
this  distinction  have  been  most  carefully  worked  out. 
In  Houston  v.  Moore  (5  Wh.,  1)  Justice  Johnson 
said :  ' '  The  Constitution  containing  a  grant  of  powers 
in  many  instances  similar  to  those  already  existing  in 
the  state  governments,  and  some  of  those  being  of  vital 
importance  also  to  state  authority  and  state  legisla- 
tion, it  is  not  to  be  admitted  that  the  mere  grant  of 
such  powers  in  affirmative  terms  to  Congress,  does, 
per  se,  transfer  an  exclusive  sovereignty  on  such  sub- 
jects to  the  latter.  On  the  contrary,  a  reasonable  in- 
terpretation of  that  instrument  necessarily  leads  to 
the  conclusion  that  the  powers  so  granted  are  never 
exclusive  of  similar  powers  existing  in  the  States,  un- 
less where  the  Constitution  has  expressly,  in  terms, 
given  an  exclusive  power  to  Congress,  or  the  exercise 
of  a  like  power  is  prohibited  to  the  States,  or  there  is 
a  direct  repugnancy  or  incompatibility  in  the  exercise 
of  it  by  the  States.  The  example  of  the  first  class  is  to 
be  found  in  the  exclusive  legislation  delegated  to 
Congress  over  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be, 
for  forts,   arsenals,   dock-yards,   etc.;   of   the   second 

existence  of  the  federal  statute.  Upon  the  repeal  of  the  federal 
statute,  the  state  law  again  operates  without  any  reenactment  by 
the  State. 

137 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

class,  the  prohibition  of  a  State  to  coin  money  or  emit 
bills  of  credit;  of  the  third  class,  as  this  court  have 
already  held,  the  power  to  establish  a  uniform  rule 
of  Naturalization  (Chirac  v.  Chirac,  2  AVh.,  259), 
and  the  delegation  of  admiralty  and  maritime  juris- 
diction (Martin  v.  Hunter,  1  Wh.,  30-4).  In  all  other 
cases  not  falling  within  the  classes  already  mentioned, 
it  seems  unquestionable  that  the  States  retain  concur- 
rent authority  with  Congress,  not  only  upon  the  let- 
ter and  spirit  of  the  eleventh  (tenth?)  amendment  of 
the  Constitution,  but  upon  the  soundest  principles  of 
general  reasoning." 

So,  later,  in  Cooley  v.  Board  of  Wardens  (12  How., 
300),  the  court  declared:  "The  grant  of  commercial 
power  to  Congress  does  not  contain  any  terms  which 
expressly  exclude  the  States  from  exercising  an  au- 
thority over  its  subject  matter.  If  they  are  excluded 
it  must  be  because  the  nature  of  the  power  thus 
granted  to  Congress  requires  that  a  similar  authority 
should  not  exist  in  the  States." 

Still  later,  in  Cardwell  i'.  American  River  Bridge 
Co.  (113  U.  S.,  205),  the  court,  after  quoting  a  num- 
ber of  cases,  says :  ' '  These  cases  illustrate  the  general 
doctrine  now  fully  recognized,  that  the  commercial 
power  of  Congress  is  exclusive  of  state  authority  only 
when  the  subjects  upon  which  it  is  exerted  are  na- 
tional in  their  character  and  admit  and  require  uni- 
formity of  regulations  affecting  alike  all  the  States, 
and  that  when  the  subjects  within  that  power  are  local 
in  their  natui-e  or  operation,  or  constitute  mere  aids  to 
commerce,  the  States  may  provide  for  their  regula- 
tion and  management  until  Congress  intervenes  and 

138 


FEDERAL  AND   STATE   POWERS 


supersedes  their  action."  Applying  this  principle, 
the  Supreme  Court  has  held  that  the  States  may  legis- 
late regarding  such  matters  as  pilotage,  wharves,  har- 
bors, etc. ;  but  may  not,  even  though  Congress  has  not 
acted,  take  any  steps  that  in  effect  will  operate  to 
hinder  or  regulate  the  carrying  on  of  interstate  com- 
merce itself.  "The  power  of  Congress,"  has  said  the 
Court  in  Brown  v.  Houston  (114  U.  S.,  622),  "is  cer- 
tainly so  far  exclusive  that  no  State  has  power  to 
make  any  law  or  regulation  which  will  affect  the  free 
and  unrestrained  intercourse  and  trade  between  the 
States,  as  Congress  has  left  it,  or  which  will  impose 
any  discriminating  burden  or  tax  upon  the  citizens  or 
products  of  other  States  coming  or  brought  within  its 
jurisdiction.  All  laws  and  regulations  are  restrictive 
of  natural  freedom  to  some  extent,  and  where  no  regu- 
lation is  imposed  by  the  government  which  has  the 
exclusive  power  to  regulate,  it  is  an  indication  of  its 
will  that  the  matter  shall  be  left  free.  So  long  as 
Congress  does  not  pass  any  law  to  regulate  commerce 
among  the  several  States,  it  thereby  indicates  its  will 
that  the  commerce  shall  be  free  and  untrammeled, 
and  any  regulation  of  the  subject  by  the  States  is  re- 
pugnant to  such  freedom." 

It  will  have  been  noticed  that  in  speaking  of  the 
powers  possessed  by  the  G-eneral  Government,  the 
term  "delegated"  has  been  used,  w^hereas,  in  speak- 
ing of  the  powers  possessed  by  the  States,  the  word 
"reserved"  has  been  employed.  This  has  been  done 
advisedly,  the  fundamental  principle  governing  the 
division  of  powers  between  the  General  Government 
and  the  States  being  that  the  former  possesses  only 

139 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

those  powers  that  are  by  the  Constitution  granted  to 
it,  whereas  the  States  are  to  be  construed  as  entitled 
to  exercise  all  powers  except  those  expressly  or  by 
implication  denied  to  them  by  the  Constitution.  Thus 
the  General  Government  is  commonly  spoken  of  as 
one  of  enumerated  and  the  state  governments  as  gov- 
ernments of  unenumerated  powers. 

This  distinction  would  in  all  probability  have  been 
recognized  and  adopted  by  the  Supreme  Court  as  a 
logical  corollary  from  the  general  character  of  the 
Constitution,  had  there  been  no  express  direction  in 
that  instrument  itself  to  such  effect.  Out  of  super- 
abundant caution,  however,  the  Tenth  Amendment 
was  adopted,  which  reads:  ''The  powers  not  delegated 
to  the  United  States  by  the  Constitution,  nor  pro- 
hibited by  it  to  the  States,  are  reserved  to  the  States 
respectively,  or  to  the  people." 

The  phrase  "or  to  the  people"  covers  those  powers 
which,  though  constitutionally  exercisable  by  the 
States,  for  aught  the  federal  Constitution  has  to  say, 
are  by  their  own  state  constitutions  denied  to  their 
respective  governments.  Thus  the  federal  and  the 
state  constitutions  differ  in  this  important  respect  that 
the  grants  of  the  former  operate  to  endow  the  General 
Government  with  powers  that  it  would  not  otherwise 
possess,  whereas  the  provisions  of  the  latter  in  the 
main  operate  to  deprive  the  governments  which  they 
create  of  powers  they  otherwise  would  possess. 

Except  when  expressly  limited, — as,  for  instance, 
where  the  power  which  is  given  to  levy  taxes  is  re- 
stricted by  the  provisions  that  "all  duties,  imposts, 
and  excises  shall  be  uniform  throughout  the  United 

140 


FEDERAL   AND   STATE   POWERS 


States,"  that  "no  tax  or  duty  shall  be  laid  on  articles 
exported  from  any  State,"  that  "no  capitation  or 
other  direct  tax  shall  be  laid,  unless  in  proportion  to 
the  census  or  enumeration  hereinbefore  directed  to  be 
taken,"  and  that  "no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another,"— a  power  granted 
to  Federal  Government  is  construed  to  be  absolute  in 
character.  Thus  it  follows  that,  though  the  presump- 
tion is  contra  when  the  question  is  as  to  the  possession 
of  a  power  by  General  Government,  the  presumption 
is  in  its  favor  when  the  question  is  as  to  whether  a 
power  which  is  admitted  to  be  a  federal  one  is  abso- 
lute or  limited. 

Express  and  Implied  Powers.  Though  the  Federal  Gov- 
ernment is  one  of  enumerated  powers,  it  is  one  that 
has  from  the  very  beginning  been  construed  to  possess 
not  simply  those  powers  that  are  specifically  or  ex- 
pressly given  it,  but  also  those  necessary  and  proper 
for  the  effective  exercise  of  such  express  powers.  Af- 
ter enumerating  the  various  powers  that  Congress  is 
to  possess,  the  Constitution  declares  (Art.  I,  Sec.  8), 
"[The  Congress  shall  have  power]  to  make  all  laws 
which  shall  be  necessary  and  proper  for  carrying  into 
execution  the  foregoing  powers,  and  all  other  powers 
vested  by  this  Constitution  in  the  Government  of  the 
United  States  or  in  any  department  or  officer  thereof. 
Furthermore,  it  will  be  noticed  that  in  the  Tenth 
Amendment,  above  quoted,  the  powers  reserved  to  the 
States  or  to  the  people  are  not  those  not  expressly  dele- 
gated to  the  United  States,  but  simply  those  not  dele- 

141 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

gated.  This  is  significant  in  view  of  the  fact  that 
in  the  corresponding  section  in  the  Articles  of  Con- 
federation the  word  "expressly"  is  carefully  in- 
serted.^ 

From  the  very  beginning  the  Supreme  Court  of  the 
United  States  has  declared  that  the  powers  thus  im- 
pliedly granted  the  General  Government  as  necessary 
and  proper  for  the  exercise  of  the  powers  expressly 
given,  are  to  be  liberally  construed.  The  words 
"necessary  aad  proper"  it  early  held  were  not  to  be 
interpreted  as  endowing  the  General  Government 
simply  with  those  powers  indispensably  necessary  for 
the  exercise  of  its  express  powers,  but  as  equipping  it 
with  any  and  every  authority  the  exercise  of  which 
may  in  any  way  really  assist  the  Federal  Govern- 
ment in  effecting  any  of  the  purposes  the  attainment 
of  which  is  within  its  constitutional  sphere.  Thus  in 
the  case  of  United  States  v.  Fisher  (2  Cr.,  358),  de- 
cided in  1804,  Marshall  declared :  "  It  would  be  incor- 
rect and  would  produce  endless  difficulties  if  the 
opinion  should  be  maintained  that  no  law  was  author- 
ized which  was  not  indispensably  necessary  to  give 
effect  to  a  specified  power.  Where  various  systems 
might  be  adopted  for  that  purpose,  it  might  be  said 
with  respect  to  each  that  it  was  not  necessary  because 
the  end  might  be  obtained  by  other  means.  Congress 
must  possess  the  choice  of  means  which  are  in  fact 
conducive  to  the  exercise  of  a  power  granted  by  the 
Constitution." 

^  Article  II.  "Each  State  retains  its  sovereignty,  freedom  and 
independence,  and  every  power,  jurisdiction  and  right,  which  is 
not  by  this  confederation  expressly  delegated  to  the  United  States 
in  Congi'ess  assembled." 

142 


FEDERAL   AND   STATE   POWERS 

The  classic  statement,  however,  of  the  scope  of  the 
"implied"  powers  of  Congress  is  of  course  that  made 
by  Marshall  in  the  opinion  which  he  rendered  in  the 
case  of  McCulloch  v.  ^Maryland  and  which  we  have 
already  quoted  in  Chapter  III  of  this  work.^ 

Reviewing  the  effect  of  this  decision,  it  is  seen  that 
the  words  "and  proper"  as  used  in  the  phrase  "neces- 
sary and  proper"  are  construed  not  as  declaring  that 
a  means  selected  by  Congress  shall  be  proper  as  well 
as  necessary— that  is,  indispensable— for  carrying  into 
effect  a  specified  power,  but  as  qualifying  and  extend- 
ing the  force  of  "necessary"  so  as  to  render  consti- 
tutional the  selection  of  any  means  that  may  be  ap- 
propriate, that  is,  may  in  any  way  assist  the  General 
Government  in  the  exercise  of  its  constitutional 
functions.  It  need  not  be  said,  of  course,  that  the 
question  as  to  whether  or  not  the  particular  means 
selected  is  the  best  possible  means  that  might  have 
been  adopted  is  one  for  Congress  to  answer.  All  that 
the  courts  have  to  consider  in  passing  upon  its  consti- 
tutionality is  as  to  w^hether  it  is  calculated  in  any 
appreciable  degree  to  advance  the  constitutional  end 
involved. 

One  further  important  fact  regarding  the  implied 
powers  of  Congress  is  to  be  noticed.  This  is  that  it 
has  been  held  that  a  power  when  employed  as  inci- 
dental to  the  exercise  of  an  express  power  may  be 
used  free  from  a  constitutional  limitation  under  which 
it  would  rest  if  exercised  as  an  express  power.  Thus 
in  Veazie  Bank  v.  Fenno  (8  Wall.,  533)  and  Head 
Money  Cases  (112  U.  S.,  580)  the  Supreme  Court  de- 
cided that  the  power  of  taxation  when  used  simply  as 
1  See  p.  44  f. 
143 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

a  means  for  regulating  commerce  and  currency,  is  not 
subject  to  the  constitutional  limitations  under  which 
it  would  rest  if  exercised  for  the  purpose  of  raising  a 
revenue.  In  the  Head  Money  Cases  the  court  de- 
clared, relative  to  a  per  capita  tax  levied  by  Congress 
upon  persons,  not  citizens  of  the  United  States,  coming 
to  this  country:  "If  this  is  an  expedient  regulation 
of  commerce  by  Congress,  and  the  end  to  be  obtained 
is  one  falling  within  the  power,  the  act  is  not  void, 
because,  within  a  loose  and  more  extended  sense  than 
was  used  in  the  Constitution,  it  is  called  a  tax.  In  the 
case  of  Veazie  Bank  v.  Fenno,  the  enormous  tax  of 
eight  per  cent,  per  annum  on  the  circulation  of  state 
banks,  which  was  designed,  and  did  have  the  effect,  to 
drive  all  such  circulation  out  of  existence,  was  upheld 
because  it  was  a  means  properly  adopted  by  Congress 
to  protect  the  currency  which  it  had  created.  ...  It 
was  not  subject,  therefore,  to  the  rules  which  would 
invalidate  an  ordinary  tax  pure  and  simple." 

Common  Defense  and  General  Welfare.  Article  I, 
Section  8,  of  the  Constitution  declares  that  the  Con- 
gress shall  have  the  power  "to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  to  pay  the  debts  and  pro- 
vide for  the  common  defence  and  general  welfare  of 
the  United  States." 

The  view  has  at  times  been  advanced  by  those  who 
desire  to  magnify  the  powers  of  the  Federal  Govern- 
ment that  instead  of  construing  this  section  as  simply 
the  grant  of  an  authority  to  raise  revenue  in  order  to 
pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States,  it  should 

144 


FEDERAL  AND   STATE   POWERS 

be  interpreted  as  conferring  upon  Congress  two  dis- 
tinct powers;  namely:  (1)  the  power  of  taxation; 
and  (2)  the  power  to  provide  for  the  common  defense 
and  general  welfare.  And,  under  the  latter  of  these 
two  grants,  it  has  been  argued  that  the  Congress  has 
the  authority  to  exercise  any  power  that  it  may  think 
necessary  or  expedient  for  advancing  the  common 
defense  or  the  general  welfare  of  the  United  States. 
It  scarcely  needs  be  said  that  this  interpretation  has 
not  been  accepted  by  the  courts.  AVere  this  view  to 
be  accepted  the  government  of  the  United  States 
would  at  once  cease  to  be  one  of  enumerated  powers, 
for  it  would  then  be  possible  to  justify  the  exercise  of 
any  authority  whatsoever  upon  the  ground  that  the 
general  welfare  would  thereby  be  advanced.  As  Hare 
correctly  says  in  his  *' American  Constitutional  Law," 
"a  government  authorized  to  provide  for  the  common 
defense  and  general  welfare  is  virtually  absolute,  be- 
cause it  must  determine  what  means  are  requisite  for 
the  end  in  view,  and  its  decision  must  necessarily  be 
binding  on  the  courts. ' '  ^ 

Arguing  in  a  somewhat  similar  manner,  some  have 
attempted  to  render  the  General  Government  virtually 
absolute  by  discovering  in  the  words  of  the  Preamble 
to  the  Constitution  -  a  comprehensive  grant  of  power. 
The  Supreme  Court  has,  however,  never  accepted  this 

1  P.  242. 

2  "  "We  the  People  of  the  United  States,  in  order  to  form  a 
more  perfect  Union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  posterity, 
do  ordain  and  establish  this  Constitution  for  the  United  States  of 
America." 

w  145 


THE  AMERICAN   CONSTITUTIONAL  SYSTEM 

view.  The  only  force  that  may  properly  be  given  the 
Preamble  is  correctly  stated  by  Story.  "The  Pre- 
amble, ' '  he  says,  ' '  never  can  be  resorted  to,  to  enlarge 
the  powers  conferred  on  the  General  Government  or 
any  of  its  departments.  It  cannot  confer  any  power 
per  se,  it  can  never  amount  by  implication  to  an  en- 
largement of  any  power  expressly  given.  It  can  never 
be  the  legitimate  source  of  any  implied  power  when 
otherwise  withdrawn  from  the  Constitution.  Its  true 
office  is  to  expound  the  nature,  and  extent,  and  appli- 
cation of  the  powers  actually  conferred  by  the  Consti- 
tion  and  not  substantively  to  create  them."  ^ 

Most  dangerous,  however,  of  all  the  views  that  have 
been  advanced  to  magnify  the  powers  of  the  United 
States  is  that  which  ascribes  to  it  so-called  "inherent 
sovereign  rights"— rights,  that  is,  not  implied  in  the 
grant  of  any  of  its  express  powers,  but  flowing  from 
the  fact  of  its  sovereignty.  This  theory  has  played  a 
certain  part  in  our  constitutional  history  for  many 
years,  but  was  especially  pressed  during  the  period 
following  the  Spanish-American  War  and  before  the 
decision  of  the  recent  Insular  Cases.  Thus,  Senator 
Piatt  of  Connecticut  declared  in  the  Senate,  December 
19,  1898,  that  the  United  States  "possesses  every  sov- 
ereign power  not  reserved  in  its  Constitution  to  the 
States  or  to  the  people;  that  the  right  to  acquire  ter- 
ritory was  not  reserved,  and  is,  therefore,  an  inherent 
sovereign  right;  that  it  is  a  right  upon  which  there  is 
no  limitation  and  with  regard  to  which  there  is  no 
qualification;  that  in  certain  instances  the  right  may 
be  inferred  from  specific  clauses  in  the  Constitution, 
^  "Commentaries  on  the  Constitution,"  Sec.  462. 
•     146 


FEDERAL   AND    STATE   POWERS 

but  that  it  exists  independent  of  the  clauses;  that  in 
the  right  to  acquire  territory  is  found  the  right  to 
govern  it ;  that  as  the  right  to  acquire  is  a  sovereign 
and  inherent  right,  the  right  to  rule  is  a  sovereign 
right  not  limited  in  the  Constitution."^ 

So,  also.  Senator  Foraker  of  Ohio  declared  in  the 
Senate,  July  1,  1898,  in  response  to  a  question  as  to 
the  constitutional  source  whence  he  derived  the  power 
of  the  United  States  to  annex  foreign  territory,  that 
"the  power  was  to  be  found  inherent  in  our  sover- 
eignty—attached to  it  necessarily  as  a  part  of  our 
sovereignty  as  a  nation,"  and  "was  also  to  be  found 
in  the  Constitution— expressly  conferred  upon  Con- 
gress by  that  provision  of  the  Constitution  which  au- 
thorizes Congress  to  provide  for  the  general  welfare." 
When  asked  if  he  called  this  doctrine  the  "higher 
law, ' '  he  replied :  ' '  The  proposition  is  that  it  is  in- 
hei'ent  in  sovereignty  to  do  whatever  sovereignty  may 
see  fit  to  do,  and  among  other  things  to  acquire  ter- 
ritory. ' '  ^ 

There  can  be  no  question  as  to  the  constitutional 
unsoundness,  as  well  as  of  the  revolutionary  character, 
of  the  theory  advanced  in  the  foregoing  quotations. 
To  accept  it  would  be  at  once  to  overturn  the  long 
line  of  decisions  that  have  held  the  United  States  Gov- 
ernment to  be  one   of  hmited,   enumerated   powers. 

iSee  "Congressional  Record,"  XXXll   ^o.  11,  pp.  321-323. 

^  Of  substantially  the  same  character  are  the  arguments  of 
Gardiner  ("Our  Right  to  Acquire  and  Hold  Foreign  Territory," 
Putnams,  1899)  and  of  Magoon,  Law  Officer,  War  Department 
("Report  on  the  Legal  Status  of  the  Territory  and  Inhabitants 
of  the  Islands  Acquired  by  the  United  States  during  the  War  with 
Spain."    Doc.  234,  56th  Cong.,  1st  Session). 

147 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Taney,  in  denying  to  the  President  the  right  to  au- 
thorize a  suspension  of  the  writ  of  habeas  corpus, 
explicitly  repudiated  the  doctrine.  "Nor  can  any 
argument  be  drawn,"  he  said,  "from  the  nature  of 
sovereignty,  or  the  necessities  of  government  for  self- 
defense  in  times  of  tumult  and  danger.  The  Govern- 
ment of  the  United  States  is  one  of  delegated  and  lim- 
ited powers.  It  derives  its  existence  and  authority 
altogether  from  the  Constitution  and  neither  of  its 
branches  can  exercise  any  of  the  powers  of  government 
beyond  those  specified  and  granted"  {ex  parte  Merry- 
man,  Campbell's  Reports,  246). 

Unfortunately,  however,  the  Supreme  Court  has 
not  always  been  so  careful  in  denying  the  propriety 
of  an  argument  based  upon  the  inherent  sovereign 
rights  of  the  National  Government.  It  has  never  ex- 
plicitly justified  the  exercise  of  a  power  by  the  Fed- 
eral Government  upon  this  ground,  but,  obiter,  has 
several  times  used  language  suggesting  its  validity. 
Thus,  in  the  case  of  Knox  v.  Lee  (12  Wall.,  557),  Jus- 
tice Bradley  said:  "The  United  States  is  not  only  a 
Government  but  it  is  a  National  Government,  and 
the  only  government  in  this  country  that  has  the 
character  of  nationality.  It  is  invested  with  power 
over  all  the  foreign  relations  of  the  country,  war, 
peace,  and  negotiations  and  intercourse  with  other 
nations;  all  of  which  are  forbidden  to  the  state  gov- 
ernments. .  .  .  Such  being  the  character  of  the 
General  Government  it  seems  to  be  a  self-evident 
proposition  that  it  is  invested  with  all  those  inherent 
and  implied  powers  which,  at  the  time  of  adopting 
the  Constitution,  were  generally  considered  to  belong 

148 


FEDERAL   AND   STATE   POWERS 

to  every  government  as  such,  and  as  being  essential 
to  the  exercise  of  its  functions.  If  this  proposition 
be  not  true,  it  certainly  is  true  that  the  government 
of  the  United  States  has  express  authority  in  the 
clause  last  quoted,  to  make  all  such  laws  (usually  re- 
garded as  inherent  and  implied)  as  may  be  necessary 
and  proper  for  carrying  on  the  government  as  consti- 
tuted and  vindicating  its  authority  and  existence." 

Assertions  of  a  similarly  general  character  are  also 
to  be  found  in  the  opinions  rendered  in  the  cases  of 
Mormon  Church  v.  United  States  (136  U.  S.,  1)  and 
Jones  V.  United  States  (137  U.  S.,  202).  These  decla- 
rations of  the  Supreme  Court  in  all  of  these  cases 
were,  however,  as  has  been  said,  obiter  dicta,  the  de- 
cisions rendered  not  being  based  upon  them ;  and  it  is 
to  be  observed  that  in  the  recent  Insular  Cases  no  sup- 
port was  given  to  the  theory. 

A  constitutional  principle  that  is  itself  perfectly 
valid  but  which  is  sometimes  confused  with  the  one  we 
have  just  been  discussing,  or  rather  adduced  as  a  sup- 
port for  it,^  is  that  which  holds  the  United  States  im- 
pliedly equipped  with  all  the  powers  necessary  and 
proper  for  maintaining  its  international  rights  and 
fulfilling  its  international  obligations.  Inasmuch  as 
exclusive  control  of  foreign  relations  has  been  by  the 
Constitution  expressly  intrusted  to  the  United  States, 
it  follows  as  a  proper  implication  that  it  is  endowed 
with  commensurable  powers.^  But  this  is  a  very  dif- 
ferent doctrine  from  that  which  justifies  the  exercise 

^  E.  g.,  by  Senator  Piatt  in  the  speech  above  referred  to. 
2  See  United  States  v.  Arjona,  120  U.  S.,  479;  Chinese  Ex- 
clusion Cases,  130  U.  S.,  581. 

149 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

of  a  power  by  the  United  States  without  reference  to 
any  authority  specifically  given,  but  simply  upon  the 
ground  that  it  is  an  ''inherent  sovereign  right." 

Turning  now  from  the  consideration  of  the  powers 
of  the  Federal  Government  to  an  examination  of  the 
limitations  imposed  by  the  Constitution  upon  its  au- 
thority, we  tind  that  these,  like  its  powers,  are  of  two 
kinds,  express  and  implied.  The  implied  limitations 
include,  first,  all  those  which  arise  from  the  fact  that 
the  Government  of  the  United  States  is  one  of  enu- 
merated powers,  that  is  to  say,  one  that  may  not  exer- 
cise any  power  not  expressly  or  impliedly  given  it; 
and  secondly,  those  which  arise  from  the  fact  that  the 
Constitution  looks  to  a  preservation  of  the  several 
States  in  the  autonomy  that  is  allotted  them,  and 
that,  therefore,  the  Federal  Government  may  not  un- 
necessarily interfere  with  the  free  operation  of  state 
governments  either  by  way  of  imposing  upon  them 
the  performance  of  federal  duties,  or  by  unduly  re- 
straining their  freedom  of  action.^ 

The  express  limitations  upon  the  powers  of  the 
Federal  Government  are  in  part  limitations  upon  the 
manner  of  exercise  of  powers  expressly  given,  as,  for 
example,  that  direct  taxes  shall  be  apportioned  among 
the  several  States  according  to  their  respective  popu- 
lations, that  naturalization,  bankruptcy,  and  tariff 
laws  shall  be  uniform  throughout  the  United  States, 
etc. ;  and  in  part  absolute  prohibitions  upon  the  exer- 
cise, in  any  manner,  of  the  powers  specified.  These 
absolute  prohibitions  are  to  be  found,  in  the  main,  in 
Section  9  of  Article  I  and  in  the  first  eight  Amend- 
ments. 

^  This  point  will  be  more  fully  discussed  in  the  next  chapter. 
150 


FEDERAL  AND   STATE   POWERS 

From  the  very  first  it  has  been  construed  by  the 
Supreme  Court  that  the  prohibitions  contained  in 
these  Amendments  apply  only  to  the  United  States. 
This  was  first  authoritatively  declared  by  Marshall 
in  the  case  of  Barron  v.  Baltimore  (7  Pet.,  243),  de- 
cided in  1833.  In  his  opinion  rendered  in  that  case, 
Marshall  said:  "The  plaintiff  .  .  .  insists  that  the 
[Fifth]  Amendment  being  in  favor  of  the  liberty  of 
the  citizen,  ought  to  be  so  construed  as  to  restrain  the 
legislative  power  of  a  State  as  well  as  that  of  the 
United  States.  .  .  .  The  question  thus  presented  is,  we 
think,  of  great  importance,  but  not  of  much  difficulty. 
The  Constitution  was  ordained  and  established  by  the 
people  of  the  United  States  for  themselves,  for  their 
own  government,  and  not  for  the  government  of  the 
individual  States.  Each  State  established  a  constitu- 
tion for  itself,  and  in  that  constitution  provided  such 
limitations  and  restrictions  on  the  powers  of  its  par- 
ticular government  as  its  judgment  dictated.  The 
people  of  the  United  States  framed  such  a  govern- 
ment for  the  United  States  as  they  supposed  best 
adapted  to  their  situation,  and  best  calculated  to  pro- 
mote their  interests.  The  powers  they  conferred  on 
the  Government  were  to  be  exercised  by  itself ;  and  the 
limitations  on  power,  if  expressed  in  general  terms, 
are  naturally,  and  we  think  necessarily,  applicable  to 
the  governments  created  by  the  instrument.  They  are 
limitations  of  power  granted  in  the  instrument  itself ; 
not  of  distinct  governments  framed  by  different  per- 
sons and  for  different  persons." 

The  correctness  of  this  decision  has  never  been 
questioned  either  by  the  federal  or  state  courts.  How- 
ever, as  we  shall  notice  in  a  later  chapter,  the  argu- 

151 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

ment  has  been  made,  but  not  accepted  as  valid  by  the 
Supreme  Court,  that  that  clause  of  the  Fourteenth 
Amendment  which  provides  that  "No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States,"  should 
be  so  construed  as  to  render  the  provisions  of  the  first 
eight  Amendments  operative  upon  the  States. 

In  regard  to  these  first  eight  Amendments  it  may  be 
said  that  it  was  only  an  excess  of  caution  that  re- 
quired their  incorporation  in  the  Federal  Constitu- 
tion. Inasmuch  as  the  United  States  was  to  have  only 
the  powers  expressly  or  impliedly  given  it,  it  would 
have  been,  in  the  absence  of  such  express  limitations, 
without  the  authority  to  exercise  the  powers  that  these 
amendments   enumerate.^ 

1  Indeed,  in  the  eyes  of  some,  of  Hamilton  at  least,  there  were 
affirmative  reasons  why  these  limitations  should  not  be  expressly 
stated.  In  the  "Federalist,"  No.  84,  after  showing  that  Bills  of 
Rights  were  "stipulations  between  Kings  and  their  subjects, 
abridgments  of  prerogative  in  favor  of  privilege,  reservations  of 
rights  not  surrendered  to  the  prince,"  whereas  in  constitutions 
"the  people  in  reality  surrender  nothing,"  Hamilton  proceeds: 
"  I  go  further  and  affirm,  that  bills  of  rights,  in  the  sense  and  to 
the  extent  they  are  contended  for,  are  not  only  unnecessary  in 
the  proposed  Constitution,  but  would  be  even  dangerous.  They 
would  contain  various  exceptions  to  powers  not  granted ;  and  on 
this  very  account,  would  afford  a  colorable  pretext  to  claim  more 
than  were  granted.  For  why  declare  that  things  shall  not  be 
done  which  there  is  no  power  to  do  ?  Why,  for  instance,  should 
it  be  said,  that  the  liberty  of  the  press  shall  not  be  restrained, 
when  no  power  is  given  by  which  restrictions  may  be  imposed  ? 
.  .  .  Men  disposed  to  usurp  .  .  .  might  urge  with  a  semblance 
of  reason,  that  the  Constitution  ought  not  to  be  charged  with  the 
absurdity  of  providing  against  the  abuse  of  an  authority  which 
was  not  given,  and  that^the  provision  against  the  liberty  of  the 

152 


FEDERAL  AND   STATE   POWERS 

Having  described,  in  general  terms,  the  manner  in 
which  the  powers  and  limitations  of  the  General  Gov- 
ernment are  determined,  little  needs  to  be  said  re- 
garding the  powers  and  limitations  of  the  States.  The 
States  have,  of  course,  as  specifically  provided  in  the 
Tenth  Amendment,  all  powers  except  those  delegated 
—expressly  or  impliedly— to  the  United  States,  and 
those  prohibited  to  them  by  the  Constitution.  The 
powers  expressly  prohibited  to  the  States  are  those 
mentioned  in  Section  10  of  Article  I,  and  in  the  Thir- 
teenth, Fourteenth,  and  Fifteenth  Amendments.  The 
implied  prohibitions  are  those  arising  from  the  su- 
premacy of  national  laws.  This  subject  will  be  fur- 
ther touched  upon  in  the  next  chapter  which  will  deal 
with  the  mutual  independence  of  the  federal  and  state 
governments. 

press  afforded  a  clear  implication  that  a  right  to  prescribe  proper 
regulations  concerning  it,  was  intended  to  be  vested  in  the  Na- 
tional Government." 


153 


CHAPTER  IX 

COERCION  OF  STATE  ACTION 

The  right  of  the  United  States  G'overnment  to  pre- 
vent, by  force  if  necessary,  the  individual  States  from 
in  any  way  interfering  with  the  execution  of  federal 
laws  within  their  borders  has  already  been  discussed. 
The  somewhat  different  question  as  to  the  powers  pos- 
sessed by  the  General  Government  to  compel,  in  a 
positive  way,  the  performance  by  the  States  of  duties 
laid  upon  them  by  the  federal  Constitution  has  now 
to  be  considered. 

Generally  speaking,  it  is  a  matter  for  the  United 
States  or  for  an  individual  State  itself  to  determine 
whether  or  not  it  will  exercise  a  power  that  is  granted 
or  reserved  to  it.  Thus,  for  instance.  Congress  has 
never  fully  exercised  the  legislative  powers  granted  it, 
and,-  on  the  other  hand,  no  one  of  the  States  has  ever 
employed  all  the  powers  reserved  to  it.  Indeed,  with- 
out exception,  all  the  States  have  by  their  own  con- 
stitutions removed  from  the  competence  of  their 
legislatures  many  powers  that,  so  far  as  the  Federal 
Constitution  is  concerned,  they  might  properly  em- 
ploy. But  when  from  rights  we  turn  to  duties  the 
question  is  a  different  one. 

154 


COERCION   OF   STATE   ACTION 


A  considerable  number  of  duties  are  specifically,  or 
by  implication,  laid  upon  the  United  States  by  the 
Constitution.  Thus,  in  general,  it  may  be  said  that 
Congress  has  imposed  upon  it  the  obligation  of  pass- 
ing such  laws  as  are  necessary  to  make  effective  the 
various  provisions  of  the  Constitution.  For  example, 
the  grant  of  judicial  power  to  the  United  States  would 
be  valueless  without  congressional  action  determining 
the  constitution  of  the  Supreme  Court,  creating  a  sys- 
tem of  inferior  federal  courts  and  fixing  their  several 
jurisdictions,  and  executive  action  in  the  appoint- 
ment of  the  necessary  justices  and  other  judicial  offi- 
cers. So  also  the  various  executive  departments  of 
the  Federal  Government  owe  their  creation  and  main- 
tenance to  legislative  and  executive  action.  Again, 
the  creation  of  new  States  out  of  territories  requires 
the  affirmative  action  of  the  legislative  branch  of  the 
Federal  Government.  As  to  all  these,  and  many  other 
duties  that  are  laid  upon  the  different  departments 
of  the  Federal  Government,  there  can  bo  no  question 
but  that  however  great  a  moral  obligation  there  may 
be  for  their  exercise,  there  is  no  legal  means  of  com- 
pelling their  performance.  Should  Congress  neglect 
to  create  inferior  federal  tribunals,  or  should  it  arbi- 
trarily refuse  to  admit  as  a  State  a  territory  that  has 
advanced  far  beyond  the  stage  that  would  justly  en- 
title it  to  statehood,  there  would  be  no  legal  means  of 
enforcing  action.  Here,  as  in  many  cases  of  possible 
abuse  of  power,  the  compelling  or  restraining  forces 
that  have  to  be  depended  upon  are  public  opinion, 
the  suffrage,  and,  in  some  few  instances,  impeachment. 

If,  then,  this  be  the  condition  of  affairs  as  regards 
155 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

the  duties  laid  by  the  Constitution  upon  the  several 
departments  of  government  of  the  United  States,  v^^hat 
is  the  situation  as  regards  those  duties,  the  perform- 
ance of  which  is  expressly  or  impliedly  imposed  by 
the  Constitution  upon  the  peoples  and  governments 
of  the  individual  States? 

First,  let  us  see  what  are  some  of  these  affirmative 
duties.  The  more  important  of  them  are  the  fol- 
lowing : 

First,  the  Constitution  declares  that:  "No  person 
held  to  service  or  labor  in  one  State,  under  the  laws 
thereof,  escaping  into  another,  shall,  in  consequence 
of  any  law  or  regulation  therein,  be  discharged  from 
such  service  or  labor,  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may 
Ke  due."  This  clause,  of  course,  refers  to  fugitive 
slaves,  and  therefore  has  been  without  significance 
since  the  adoption  of  the  Thirteenth  Amendment. 
The  history  of  the  manner  in  which  its  enforcement 
was  attempted  and  the  judicial  decisions  occasioned 
thereby,  however,  throw  considerable  light  upon  the 
general  question  which  we  are  now  considering  of  the 
power  of  the  United  States  to  compel  the  affirmative 
performance  of  duties  by  the  States. 

Secondly,  the  Constitution  declares  that:  "A  person 
charged  in  any  State  with  treason,  felony,  or  other 
crime,  who  shall  flee  from  justice,  and  be  found  in  an- 
other State,  shall  on  demand  of  the  executive  authority 
of  the  State  from  which  he  fled,  be  delivered  up  to  be 
removed  to  the  State  having  jurisdiction  of  the 
crime. ' ' 

Thirdly,  the  States  have  laid  upon  them  the  duty  of 
156 


COERCION   OF   STATE  ACTION 


playing  their  constitutional  part  in  the  establishment 
and  maintenance  of  the  Federal  Government  by  se- 
lecting Representatives  and  Senators  for  Congress, 
and  participating  in  the  election  of  the  President. 

Fourthly,  by  federal  law  there  is  given  in  certain 
cases  a  right  of  appeal  to  the  Supreme  Court  of  the 
United  States  from  the  highest  courts  of  the  States. 
In  other  cases,  also,  there  is  granted  to  the  defendants 
a  right  of  removal  to  the  superior  federal  courts  of 
suits  brought  against  them  in  the  state  courts.  Such 
state  courts  have  therefore  laid  upon  them  certain 
duties  in  connection  with  the  perfecting  of  such  ap- 
peals, as,  for  example,  the  preparation  and  certify- 
ing of  the  "records"  of  the  cases  in  which  an  appeal 
or  removal  is  sought. 

Fifthly,  the  Constitution  provides  that  no  State 
shall  pass  any  law  impairing  the  obligation  of  con- 
tracts. Stated  positively,  this  of  course  means  that  all 
individuals  shall  have  the  right  to  obtain  enforcement 
of  all  legal  agreements. 

By  briefly  considering,  in  each  of  the  above  classes 
of  duties,  the  power  of  the  Federal  Government  to 
compel  their  performance  by  the  States,  and  by  com- 
bining the  conclusions  reached,  we  shall  be  able  to 
obtain  a  satisfactory  knowledge  of  the  relations  that 
exist  between  the  Union  and  its  member  States  in 
matters  of  this  sort. 

First,  then,  as  to  the  surrender  of  fugitive  slaves. 

With  reference  both  to  fugitive  slaves  and  fugitives 
from  justice,  the  fact  may  be  mentioned  that,  accord- 
ing to  United  States  Constitutional  Law,  there  would 
have  been,  in  the  absence  of  the  express  provision  of 

157 


THE   AMERICAN   CONSTITUTIONAL  SYSTEM 

Article  IV,  Section  2,  no  legal  means  whatever  where- 
by one  State  might  obtain  from  another  the  surrender 
of  fugitives  from  itself,  should  that  other  State  refuse 
its  consent  and  assistance.  This  result  would  follow 
from  the  general  principle  that,  except  in  so  far  as  the 
federal  Constitution  expressly  provides  otherwise,  the 
member  States  of  the  Union  occupy  a  position,  as  re- 
gards one  another,  exactly  similar  to  that  in  which 
sovereign,  independent  States  stand  toward  one  an- 
other. The  laws  and  judiciary  of  the  one  have  no  op- 
eration, ex  propria  vigors,  within  the  territorial  limits 
of  any  one  of  the  other  States,  and  its  officers  are  like- 
wise destitute  of  authority  outside  of  its  own  borders. 
In  the  case  of  Prigg  v.  Pennsylvania  (16  Pet.,  539) 
the  law  relative  to  the  surrender  of  fugitive  slaves 
was  first  authoritatively  laid  down.  In  that  case. 
Justice  Story,  in  rendering  the  opinion  of  the  Court, 
referred  to  the  fact  that  "Historically,  .  .  .  the 
object  of  this  [fugitive  slave]  clause  was  to  secure 
to  the  citizens  of  the  slave-holding  States  the  complete 
right  and  title  of  ownership  in  their  slaves,  as  prop- 
erty, in  every  State  in  the  Union  into  which  they 
might  escape  from  the  State  where  they  were  held  in 
servitude."  This,  then,  he  says,  being  a  right  guar- 
anteed to  them  by  the  Constitution,  it  is  the  duty  of 
the  Federal  Government  to  see  that  they  obtain  it. 
But,  he  continues,  if  it  be  left  to  the  individual  States, 
many  of  which  are  opposed  to  slavery,  to  enact  and 
enforce  the  laws  necessary  to  make  the  right  effec- 
tive, it  is  almost  certain  that  they  will  not  do  so,  and 
thus  the  people  of  the  slave-owning  States  will  be  de- 
prived not  only  of  their  guaranteed  rights,  but  of  one 

158 


COERCION   OF   STATE   ACTION 


of  those  very  rights,  the  promise  of  which  was  an  es- 
sential inducement  to  them  to  come  into  the  Union. 
Therefore,  said  Story,  speaking  for  the  majority  of 
the  Court,  a  federal  law  is  just  and  proper,  for,  as  he 
says,  the  language  of  any  clause  should  be  interpreted 
"in  such  a  manner,  as,  consistently  with  the  words, 
shall  fully  and  completely  effectuate  the  whole  rights 
of  it."  He  then  continues:  "The  clause  is  found  in 
the  national  Constitution,  and  not  in  that  of  any 
State.  It  does  not  point  out  any  state  functionaries, 
or  any  state  action  to  carry  its  provisions  into  effect. 
The  States  cannot,  therefore,  be  compelled  to  enforce 
them  ;  and  it  might  well  be  deemed  an  unconstitutional 
exercise  of  the  power  of  interpretation,  to  insist  that 
the  States  are  bound  to  provide  means  to  carry  into 
effect  the  duties  of  the  National  Government  nowhere 
delegated  or  intrusted  to  them  by  the  Constitution." 

It  will  be  observed  that  by  this  decision  the  Supreme 
Court  declared  that  as  a  matter  of  fact  when  the  Con- 
stitution declared  that  persons  held  to  servitude 
in  one  State  escaping  into  another  should  be  delivered 
up,  the  affirmative  legal  duty  of  seeing  that  this  was 
done  was  laid  upon  the  National  Government  and  not 
upon  the  States  at  all.  Upon  them  was  laid  only  the 
duty,  and  that  but  an  implied  one,  of  not  hindering 
the  performance  by  the  Federal  Government  of  its 
duty. 

A  fact  to  be  noted  regarding  the  federal  law,  the 
constitutionality  of  which  was  asserted  in  this  case, 
is  that  it  provided  that  fugitive  slaves,  when  arrested 
by  their  owners  or  their  agents,  should  be  taken  before 
a  federal  court,  or  a  state  magistrate,  and  upon  proof, 

159 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

etc.,  taken  back  to  the  States  from  which  they  had 
fled.    In  the  arguments  addressed  to  the  Court,  and  in 
the    opinions    rendered    by    all    its    justices,    except 
McLean,  it  was  conceded  that  that  provision  of  the 
federal   statute  which  declared  that   fugitive   slaves 
might  be  taken  before  state  magistrates,  had  not,  and 
could  not  constitutionally  be  made  to  have  the  effect 
of  imposing  a  duty  upon  such  state  officials  which 
might  be  enforced  should  they  refuse  its  performance. 
In  his  opinion,  McLean  declared:   "It  seems  to  be 
taken  as  a  conceded  point  in  the  argument  that  Con- 
gress had  no  power  to  impose  duties  on  state  officers,  as 
provided  in  the  above  act.    As  a  general  principle  this 
is  true.  .  .  .  Congress  can  no  more  regulate  the  juris- 
diction of  the  state  tribunals  than  a  State  can  define 
the  judicial  power  of  the  Union.    The  officers  of  each 
government   are   responsible   only   to   the   respective 
authorities    under    which    they    are    commissioned." 
"But,"  McLean  went  on  to  ask,  "do  not  the  clauses 
in    the    Constitution    in    regard    to    fugitives    from 
labor  and  from  justice  give  Congress  a  power  over 
state  officers,  on  these  subjects?  "     Answering  this 
question,  he  asserted  as  his  own  opinion  that  where 
the  Constitution  imposes  a  positive  duty  on  a  State, 
or  its  officers,  to  surrender  fugitives,  Congress  may 
prescribe  the  mode  of  proof  and  the  duty  of  the  state 
officers.      But,    even    though    taking    this    position, 
which  it  may  be  said,  parenthetically,  the  Supreme 
Court  has  never  upheld,  McLean  himself  said  that 
should  this  power  of  Congress  be  resisted  by  a  State 
there  would  be  no  means  of  coercing  it. 

The  case  of  Prigg  v.  Pennsylvania  was  decided  in 
160 


COERCION   OF   STATE   ACTION 


1842.  Besides  upholding  the  constitutionality  of  the 
federal  law,  it  denied  the  power  of  the  States  to  pass 
any  laws  regulating  the  rendition  of  fugitive  slaves, 
even  though  intended  in  good  faith  to  aid  in  the  cap- 
ture and  surrender  to  their  proper  masters  of  these 
pieces  of  property.  In  1843  Massachusetts  and  Ver- 
mont passed  laws  which  expressly  prohibited  their  re- 
spective officers  from  performing  any  of  the  duties 
required  of  them  by  the  federal  fugitive  slave  law; 
and  in  1847-48  Pennsylvania  and  Rhode  Island  fol- 
lowed suit.  In  1850  Congress  enacted  a  new  fugitive 
slave  law  the  execution  of  which  was  placed  wholly 
within  the  hands  of  federal  officials.  Thereupon  a 
considerable  number  of  the  Northern  and  Western 
States  passed  laws  which  not  only  denied  the  use  of 
their  jails,  forbade  the  judges  to  issue  writs  or  give 
any  assistance  whatever  to  claimants  of  fugitive  slaves, 
but  made  provision  for  counsel  for  apprehended  ne- 
groes, declared  them  entitled  to  the  writ  of  liaheas 
corpus,  required  a  jury  to  establish  their  identity,  and 
imposed  heavy  penalties  upon  all  persons  who  should 
be  shown  to  have  forcibly  seized  or  falsely  laid  claim 
to  negroes  as  their  slaves.  Vermont  indeed  had,  and 
kept,  upon  her  statute  book  a  law  that  was,  in  terms, 
directly  nullificatory  of  the  federal  act,  declaring  that 
any  person  who  might  have  been  held  as  a  slave,  and 
who  should  come  into  the  State,  should  be  free. 

From  the  surrender  of  fugitive  slaves  we  turn  now 
to  the  subject  of  extradition  of  fugitives  from  justice. 

The  same  article  of  the  Constitution  that  provides 
for  the  surrender  of  fugitive  slaves  provides  also,  as 
we  have  seen,  that  "a  person  charged  in  any  State 
11  161 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

with  treason,  felony,  or  other  crime,  who  shall  flee 
from  justice,  and  be  found  in  another  State,  shall  on 
demand  of  the  executive  authority  of  the  State  from 
which  he  fled,  be  delivered  up,  to  be  removed  to  the 
State  having  jurisdiction  of  the  crime."  The  legisla- 
tive and  judicial  history  of  this  clause  has,  however, 
been  quite  different  from  that  of  the  fugitive  slave 
clause. 

In  the  case  of  Kentucky  v.  Dennison  (24  How.,  66), 
decided  by  the  Supreme  Court  in  1860,  the  whole  sub- 
ject of  the  respective  powers  and  duties  of  the  state 
and  federal  governments  in  respect  to  this  matter  of 
extradition  of  criminals,  came  up  for  adjudication. 
Congress  had  passed  a  law  declaring  that,  upon  re- 
quest from  the  State  from  which  the  fugitive  has 
escaped,  "it  shall  be  the  duty  of  the  executive  au- 
thority of  the  State"  to  cause  the  fugitive  to  be  seized 
and  delivered  to  the  agent  of  the  demanding  State. 
Dennison,  the  governor  of  Ohio,  refused  the  request  of 
the  Commonwealth  of  Kentucky  to  surrender  a  fugi- 
tive from  her  borders.  Thereupon  a  mandamus  was 
asked  from  the  federal  court  to  compel  him  to  do  so. 
This  w^rit  the  Supreme  Court  refused  to  issue,  the 
argument  of  Taney,  who  prepared  the  opinion  of  the 
Court,  being  as  follows:  The  duty  of  providing  by 
law  the  regulations  necessary  for  carrying  into  effect 
this  right  to  extradition,  he  said,  manifestly  belonged 
to  Congress.  Furthermore,  he  declared,  the  duty 
that  was  laid  upon  the  governors  of  the  States  by  the 
Constitution,  and  by  the  law  that  Congress  had 
passed,  was  a  mere  ministerial  duty,  and,  therefore, 
one  the  performance  of  which  might  ordinarily  be 

162 


COERCION   OF   STATE   ACTION 


compelled  by  the  courts.  Thirdly,  it  was  certain  that 
the  words  "it  shall  be  the  duty,"  when  employed  in 
ordinary  acts  of  legislation,  imply  an  assertion  of  the 
right  to  command  and  coerce  obedience.  "But,"  said 
Taney,  ' '  looking  to  the  subject-matter  of  this  law,  and 
the  relations  which  the  United  States  and  the  several 
States  bear  to  each  other,  the  Court  is  of  opinion  the 
words  'it  shall  be  the  duty'  were  not  used  as  manda- 
tory and  compulsory,  but  as  declaratory  of  the  moral 
duty  which  this  compact  created,  when  Congress  had 
provided  the  mode  of  carrying  it  into  execution.  The 
act  does  not  provide  any  means  to  compel  the  execu- 
tion of  this  duty,  nor  inflict  any  punishment  for 
neglect  or  refusal  on  the  part  of  the  executive  of  the 
State;  nor  is  there  any  clause  or  provision  in  the  Con- 
stitution which  arms  the  government  of  the  United 
States  with  this  poiver.  Indeed,  such  a  power  would 
place  every  State  under  the  control  and  dominion  of 
the  General  Government,  even  in  the  administration 
of  its  internal  concerns  and  reserved  rights.  And  we 
think  it  clear  that  the  Federal  Government,  under  the 
Constitution,  has  no  power  to  impose  on  a  state  officer, 
as  such,  any  duty  whatever,  and  compel  him  to  per- 
form it.  .  .  .  It  is  true  that  Congress  may  authorize 
a  particular  state  officer  to  perform  a  particular  duty ; 
but  if  he  declines  to  do  so,  it  does  not  follow  that  he 
may  be  coerced  or  punished  for  his  refusal." 

This  judgment  of  the  Court  in  Kentucky  v.  Den- 
nison  brings  into  very  clear  light  the  completeness 
with  which  the  federal  and  state  governments,  when 
acting  within  their  respective  constitutional  spheres, 
are  kept  independent  of  each  other;  for  here  was  a 

163 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

case  in  which  an  express  duty  had  been  laid  by  the 
federal  Constitution  itself  upon  the  States,  and  yet 
the  General  Government  was  held  powerless  to  compel 
its  performance. 

As  regards,  now,  the  election  of  Representatives, 
Senators,  and  Presidential  Electors  by  the  States,  it 
may  be  said  that  the  States  never  have  actually  re- 
fused to  act.  Their  power  to  refuse,  and  the  impo- 
tency  of  the  Federal  Government  in  such  a  ease  to 
compel  them  to  act,  has,  however,  been  several  times 
asserted,  and,  so  far  as  the  writer  knows,  has  never 
been  denied.  Indeed  it  would  be  very  difficult  to  sug- 
gest any  possible  legal  means  by  which  such  action 
could  be  affirmatively  compelled.  In  the  case  of 
Cohens  v.  Virginia,  to  which  reference  has  already 
been  made  in  connection  with  the  matter  of  appeals 
from  state  courts  Lo  the  United  States  Supreme  Court, 
Barbour,  arguing  in  behalf  of  the  position  which  had 
been  taken  by  Virginia,  declared:  "Whenever  the 
States  shall  be  determined  to  destroy  the  Federal  Gov- 
ernment, they  will  not  find  it  necessary  to  act,  and 
to  act  in  violation  of  the  Constitution.  They  can 
quietly  accomplish  the  purpose  by  not  acting.  Upon 
the  state  legislatures  it  depends  to  appoint  the  Sena- 
tors and  Presidential  Electors,  or  to  provide  for  their 
election.  Let  them  merely  not  act  in  these  particulars, 
the  executive  department  and  part  of  the  legislature 
ceases  to  exist,  and  the  Federal  Government  thus  per- 
ishes by  a  sin  of  omission  not  of  commission."  To 
this  position  Webster  alluded  in  his  speech  in  reply 
to  Calhoun,  and  endeavored  to  minimize  its  impor- 
tance from  the  States'  Rights  standpoint.    "I  hear  it 

164 


COERCION  OF  STATE  ACTION 


often  suggested,"  he  said,  "that  the  States,  by  refus- 
ing to  appoint  Senators  and  Electors,  might  bring  this 
government  to  an  end.  Perhaps  this  is  true ;  but  the 
same  may  be  said  of  the  state  governments  themselves. 
Suppose  the  legislature  of  a  State,  having  the  power 
to  appoint  the  governor  and  the  judges,  should  omit 
that  duty,  would  not  the  state  government  remain  un- 
organized ?  No  doubt,  all  elective  governments  may 
be  broken  up  by  a  general  abandonment  on  the  part 
of  those  intrusted  with  political  powers,  of  their  ap- 
propriate duties."  Moreover,  as  a  matter  of  fact,  as 
Webster  went  on  to  show,  in  a  certain  very  important 
sense  the  federal  Constitution  relies,  for  the  main- 
tenance of  the  government  which  it  establishes,  upon 
the  plighted  faith  not  of  the  States,  as  States,  but 
upon  the  several  oaths  of  their  individual  citizens,  in 
that  all  members  of  a  state  legislature  are  obliged,  as 
a  condition  precedent  to  their  taking  their  seats,  to 
swear  to  support  the  federal  Constitution,  and  from 
the  obligation  of  this  oath  no  state  power  can  dis- 
charge them.  Thus,  said  Webster,  "no  member  of  a 
state  legislature  can  refuse  to  proceed  at  the  proper 
time  to  elect  Senators  to  Congress,  or  to  provide  for 
the  choice  of  Electors  of  President  and  Vice-President, 
any  more  than  the  members  of  this  body  [Senate] 
can  refuse,  when  the  appointed  day  arrives,  to  meet 
the  members  of  the  other  House,  to  count  the  votes  for 
those  officers,  and  ascertain  who  are  chosen.  In  both 
cases,  the  duty  binds,  and  with  equal  strength,  the 
conscience  of  the  individual  member,  and  it  is  im- 
posed on  all  by  an  oath  in  the  very  same  words.  Let 
it  then  never  be  said.  Sir,  tiiat  it  is  a  matter  of  discre- 

165 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tion  with  the  States  whether  they  will  continue  the 
government,  or  break  it  up  by  refusing  to  appoint 
Senators  and  Electors.  They  have  no  discretion  in  the 
matter.  The  members  of  the  legislatures  cannot  avoid 
doing  either,  so  often  as  the  time  arrives,  without  a 
direct  violation  of  their  duty  and  their  oaths;  such  a 
violation  as  would  break  up  any  other  government." 

The  correctness  of  the  reasoning  of  Webster  may  be 
granted,  and  yet  the  fact  remains  that  however  great 
a  moral  obligation  there  may  be  upon  the  individual 
members  of  the  several  state  governments  to  take  such 
action  as  is  necessary  to  equip  the  Federal  Govern- 
ment with  the  officials  necessary  for  its  operation, 
there  exist  no  legal  means,  by  an  issue  of  mandamus 
or  otherwise,  to  compel  such  action  when  refused. 

But  though  the  United  States  government  is  impo- 
tent to  enforce  action  in  the  matters  of  which  we  have 
been  speaking,  the  Constitution  gives  it  the  power  to 
determine  the  manner  in  which  such  action  shall  be 
taken,  if  taken  at  all.  Article  I,  Section  4,  of  the  Con- 
stitution provides  that,  "The  times,  places,  and  man- 
ner of  holding  elections  for  Senators  and  Represen- 
tatives, shall  be  prescribed  in  each  State  by  the  leg- 
islature thereof ;  but  the  Congress  may  at  any  time  by 
law  make  or  alter  such  regulations  except  as  to  the 
places  of  choosing  Senators." 

Congress  has  exercised  the  authority  granted  it  by 
this  clause  to  but  a  comparatively  slight  extent;  and, 
even  when  exercised,  its  power  has  been  employed  not 
so  much  by  way  of  establishing  positive  regulations  of 
its  own,  as  by  the  appointment  of  marshals  and  su- 
l^ervisors  of  elections  to  see  to  it  that  the  state  laws  are 

166 


COERCION   OF   STATE   ACTION 


applied  with  fairness  to  all  qualified  voters.  This 
right  of  oversight,  has,  however,  been  resisted  by  some 
of  the  States  upon  the  ground  that,  though  the  United 
States  may  establish  regulations  of  its  own,  appoint 
officials  to  execute  them,  and  compel  the  officials  of  the 
State  as  well  as  private  citizens  to  conform  to  them,  it 
has  no  right  or  power  to  control  state  officials  in  the 
execution  of  the  laws  enacted  by  their  own  States,  even 
though  those  laws  relate  to  the  election  of  members  of 
the  National  Legislature. 

This  controversy  reached  a  judicial  settlement  in  the 
case  of  Ex  parte  Siebold  (100  U.  S.,  371),  decided  in 
187^.  This  suit  arose  out  of  ""he  arrest  of  certain  state- 
appointed  judges  of  elections  who  were  charged  with 
interfering  with  and  resisting  supervisors  and  deputy 
marshals  holding  appointment  from  the  Federal 
Government.  In  behalf  of  the  defendants  it  was 
maintained  that  the  federal  officials  had  been  without 
constitutional  authority,  and,  therefore,  that  the  resis- 
tance offered  them  was  not  a  legal  offense.  In  deciding 
the  case,  the  Court  said:  "It  is  objected  that  Congress 
has  no  power  to  enforce  state  laws  or  to  punish  state 
officers,  and  especially  has  no  power  to  punish  them 
for  violating  the  laws  of  their  own  State.  As  a 
general  proposition,  this  is  undoubtedly  true;  but 
when,  in  the  performance  of  their  functions,  state 
officers  are  called  upon  to  fulfil  duties  which  they  owe 
to  the  United  States  as  well  as  to  the  State,  has  the 
former  no  means  of  compelling  such  fulfilment?  Yet 
that  is  the  case  here.  It  is  the  duty  of  the  States  to 
elect  Representatives  to  Congress.  The  due  and  fair 
election  of  these  Representatives  is  of  vital  importance 

167 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


to  the  United  States.  .  .  .  The  objection  that  the 
laws  and  regulations,  the  violation  of  which  is  made 
punishable  by  the  Acts  of  Congress,  are  state  laws  and 
have  not  been  adopted  by  Congress,  is  no  sufficient 
answer  to  the  power  of  Congress  to  impose  punish- 
ment. .  .  .  The  state  laws  which  Congress  sees  no 
occasion  to  alter,  but  which  it  allows  to  stand,  are  in 
effect  adopted  by  Congress." 

By  the  recognition  of  this  last  implication,  the  whole 
difficulty  of  the  case  was  of  course  removed,  for  if 
there  had  been  a  violation  of  what  were  in  fact  federal 
laws,  of  course  the  federal  legislature  had  the  power  of 
imposing  penalties  for  their  violation,  and  the  federal 
courts  had  the  power  of  applying  them.^  In  Ex  parte 
Yarborough  (110  U.  S.,  651),  the  doctrine  declared  in 
Siebold's  case  was  reaffirmed,  the  Court  saying,  "If 
this  government  is  anything  more  than  a  mere  aggre- 
gation of  delegated  agents  of  other  States  and  gov- 
ernments, each  of  which  is  superior  to  the  General 
Government,  it  must  have  the  power  to  protect  the 
elections  from  violence  and  corruption." 

1  In  a  strong  dissenting  opinion  Justice  Field  took  the  ground 
that  in  granting  to  the  Federal  Government  the  authority  to  en- 
act laws  regulating  the  elections  of  Senators  and  Representa- 
tives, the  intention  of  the  framers  of  the  Constitution  had  been 
simply  to  authorize  the  General  Government  to  legislate  in  case 
the  state  government  refused  to  take  any  steps  whatever.  As 
he  said :  "  The  act  was  designed  simply  to  give  to  the  General 
Government  the  means  of  its  preservation  against  a  possible  dis- 
solution from  the  hostility  of  the  States  to  the  election  of  Repre- 
sentatives, or  from  their  neglect  to  provide  suitable  means  for 
holding  such  elections."  As  evidence  that  this  was  the  inten- 
tion, Madison's  remarks  in  the  Constitutional  Convention  and 
Hamilton's  in  the  "  Federalist "  were  cited. 

168 


COERCION   OF   STATE   ACTION 


We  turn  now  to  the  subject  of  the  power  of  the 
United  States  to  compel  the  performance  by  the  States 
of  such  duties  as  are  necessarily  laid  upon  them  in 
connection  with  the  perfecting  of  appeals  from  their 
courts  to  the  Supreme  Court  of  the  United  States,  and 
with  the  removal  to  federal  tribunals  of  certain  classes 
of  cases  originally  brought  before  their  own  judges. 
As  regards  both  of  these  matters  it  may  be  said  that  it 
would  appear  that  the  General  Government  is  power- 
less to  compel  action  on  the  part  of  the  state  officials, 
unless  it  be  held  that  the  preparation  of  a  record  is  a 
purely  ministerial  act,  that  is,  one  involving  the  exer- 
cise of  no  discretion.^  As  a  matter  of  fact,  all  that  has 
been  done  in  the  past  when  the  state  tribunals  have 
refused  to  do  their  duty,  that  is,  to  prepare  and  cer- 
tify the  record  of  the  case  that  is  to  be  appealed  or 
removed,  has  been  for  the  Federal  Government  to 
proceed  as  though  the  state  courts  had  done  what  they 
should,  take  jurisdiction,  and  enforce  the  judgments, 
notwithstanding  the  remonstrances  or  resistance  that 
the  States  have  made.  Thus  when  the  Supreme  Court 
of  Wisconsin  refused  to  prepare  and  send  to  the  fed- 
eral Supreme  Court  the  record  of  the  case  of  Ableman 
V.  Booth,  the  federal  Supreme  Court,  being  notified  of 
this  refusal,  contented  itself  with  an  uncertified  record 
which  it  ordered  to  be  treated  as  though  it  had  been 
prepared  and  sent  to  it  in  due  form  by  the  state  court. 

In  the  matter  of  removal  of  cases  from  state  to  fed- 
eral courts  the  principles  and  practice  are  substanti- 
ally similar.    Thus,  as  stated  by  the  late  B.  R.  Curtis 
in   his   excellent   manual,    "The   Jurisdiction    of   the 
1  See  2)ost,  p.  178. 
169 


THE   AMERICAN    CONSTITUTIONAL   SYSTEM 


United  States  Courts,"  "The  theory  is  that  if  a  proper 
bond,  and  a  petition  stating  a  proper  ease  for  re- 
moval, are  filed  in  the  state  court,  thereupon  the 
case  is  removed,  although  the  state  courts  may  refuse 
to  make  an  order  for  removal,  and  may  proceed  with 
the  cause  (Marshall  v.  Holmes,  141  U.  S.,  589).  In 
such  a  contingency,  the  defendant's  remedy  is  a  writ 
of  error  to  the  United  States  Supreme  Court  after 
a  final  decision  has  been  made  in  the  highest  court  of 
the  state  to  which  the  suit  can  be  carried.  The  defen- 
dant may  defend  the  suit  in  the  state  court,  or  not, 
as  he  chooses ;  and  he  does  not,  by  defending  the  suit 
in  the  state  court,  forfeit  his  right  to  remove  it.  Thus 
it  might  happen  that  both  the  state  court  and  the 
[federal]  Circuit  Court  should  be  trying  the  same 
suit  at  the  same  time,  although  'comity'  would  in 
most  cases  prevent  this  result.  Neither  court  has 
power  to  stop  proceedings  in  the  other.  "^ 

States  cannot  put  restrictions  upon  the  removal  of 
cases  from  their  courts  to  federal  tribunals  any  more 
than  they  can  prevent  it.  This  was  declared  in  a  case 
arising  under  a  statute  of  the  State  of  AA^isconsin 
which  provided  that  insurance  companies  of  other 
States  desiring  to  do  business  within  its  limits  should 
sign  a  written  agreement  that  they  would  not  remove 
to  the  federal  courts  any  suit  brought  against  them 
in  the  State's  courts.    One  of  these  companies,  having 

1  Pp.  197-198,  ed.  1896.  Curtis  adds  :  "  But  the  Circuit  [federal] 
Court  can  issue  a  writ  of  certiorari  commanding  the  state  court 
to  send  a  copy  of  the  record  in  any  cause  to  the  Circuit  Court ; 
and  if  the  clerk  should  refuse  to  do  so,  he  becomes  liable  to  fine 
and  imprisonment.  So  far  as  the  writer  is  aware  there  has 
been  no  case  in  which  this  penalty  has  needed  application. 

170 


COERCION   OF   STATE   ACTION 


removed  a  case  to  the  federal  courts  notwithstanding 
its  agreement  not  to  do  so,  the  Wisconsin  courts,  ig- 
noring the  fact  of  its  removal,  proceeded  with  the 
case  and  rendered  judgment  against  the  company. 
The  Supreme  Court  of  the  United  States,  however, 
upon  appeal  to  it,  declared  the  judgment  void  upon 
the  ground  that  the  agreement  itself  not  to  remove 
was  illegal,  as  no  one  could  bind  himself  in  advance 
not  to  exercise  a  right  guaranteed  to  him  by  the  Con- 
stitution any  more  than  he  could  barter  away  his  life 
or  freedom  (Home  Insurance  Co.  v.  Morse,  20  Wall., 
445).  AVhen,  however,  in  a  later  case,  the  Supreme 
Court  of  the  United  States  was  asked  to  issue  an  in- 
junction forbidding  the  Secretary  of  State  of  Wiscon- 
sin to  revoke  the  license  of  an  insurance  company  that 
had  violated  its  agreement  not  to  remove,  that  court 
held  that  it  could  not  thus  control  the  action  of  a  state 
official,  even  though  his  action  were  apparently  based 
upon  an  improper  ground.  The  Court  said:  "The 
argument  that  the  revocation  in  question  is  made  for 
an  unconstitutional  reason  cannot  be  sustained.  The 
suggestion  confounds  an  act  with  an  emotion  or  a 
mental  proceeding  which  is  not  the  subject  of  inquiry 
in  determining  the  validity  of  a  statute"  (Doyle  v. 
Continental  Insurance  Co.,  94  U.  S.,  535).  In  other 
words,  it  was  held  that  the  right  both  of  granting  and 
of  revoknig  a  license  to  a  foreign  corporation  to  do 
business  within  a  State  belonging  to  the  proper  officer 
of  that  State,  it  was  not  within'  the  competence  of  a 
federal  court  to  determine  whether  that  poAver  Avas 
exercised  for  a  good  or  bad  reason  or  for  no  reason  at 
all.     But  when  in  a  still  later  case  there  was  drawn 

171 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

into  question  tlie  operation  of  a  statute  of  Iowa  which 
declared  that  upon  the  violation  by  a  foreign  insur- 
ance company  of  its  agreement  not  to  remove  a  case 
to  the  federal  courts,  its  license  should  thereby  become 
void,  the  federal  Supreme  Court  held  that  the  viola- 
tion of  an  illegal  agreement  could  not  of  itself  operate 
to  work  a  revocation  of  the  company's  license.  If  re- 
voked at  all  it  would  have  to  be  by  the  act  of  a  com- 
petent state  official,  and  not,  ipso  facto,  by  the  exercise 
of  a  constitutional  right  (Barron  v.  Burnside,  121 
U.  S.,  186). 

In  the  various  phases  of  the  suability  of  the  States 
of  the  American  Union,  the  extent  of  their  amena- 
bility to  compulsory  processes  issued  by  the  Federal 
Government  has  been  very  clearly  determined. 

The  Eleventh  Amendment  declares  that  "The  ju- 
dicial power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State."  This  leaves  it  still  open  to  the 
federal  courts  to  entertain  suits  brought  by  one  State 
against  another ;  and,  under  the  exercise  of  its  original 
jurisdiction,  a  number  of  such  suits  have  been  adju- 
dicated. Most  of  these  have  been  in  reference  to  suits 
regarding  boundaries.  There  is,  however,  now  pend- 
ing a  suit  brought  by  the  State  of  South  Dakota 
against  the  State  of  North  Carolina  to  compel  the  de- 
fendant State  to  pay  the  interest  and  principal  of 
certain  of  its  bonds  owned  by  the  plaintiff.  This  case 
differs  from  that  of  New  Hampshire  v.  Louisiana 
J^108  U.  S.,  76),  in  which  suit  was  brought  by  the 

172 


COERCION   OF   STATE  ACTION 

plaintiff  State  as  trustee  for  some  of  its  citizens,  and 
in  which  the  Supreme  Court  held  that,  New  Hamp- 
shire having  no  real  interest  of  its  own,  the  suit  was 
virtually  one  against  a  State  by  citizens  of  another 
State,  and,  as  such,  barred  by  the  Eleventh  Amend- 
ment.^ Though  not  expressly  disqualified  by  the 
Eleventh  Amendment  from  assuming  jurisdiction  in 
suits  instituted  against  a  State  by  one  of  its  own  citi- 
zens, the  Supreme  Court  has  declared,  in  Hans  v. 
Louisiana  (134  U.  S.,  1),  that,  by  implication  from  the 
political  character  of  the  States,  as  well  as  from  the 
known  sentiments  leading  up  to  the  Eleventh  Amend- 
ment, they  are  not  subject  to  such  a  judicial  process. 
At  the  same  time,  however,  that  the  Court  declared 
this  conclusion  as  to  the  non-suability  of  a  State  either 
by  its  own  citizens  or  citizens  of  other  States,  it  took 
the  precaution  to  say:  "To  avoid  misapprehension  it 
may  be  proper  to  add  that,  although  the  obligations  of 
a  State  rest  for  their  performance  upon  its  honor  and 
good  faith,  and  cannot  be  made  the  subject  of  judicial 
cognizance  unless  the  State  consents  to  be  sued,  or 
comes  itself  into  court;  yet,  where  property  or  rights 
are  enjoyed  under  a  grant  or  contract  made  by  a 
State,  they  cannot  wantonly  be  invaded.  Whilst  the 
State  cannot  be  compelled  by  suit  to  perform  its  con- 
tracts, any  attempt  on  its  part  to  violate  property  or 
rights  acquired  under  the  contracts,  may  be  judicially 
resisted;  and  a  law  impairing  the  obligation  of  con- 

1  Since  this  was  written  this  case  has  been  decided,  the  court 
holding  the  suit  a  proper  one  and  granting  judgment  against  the 
defendant  State  (South  Dakota  v.  North  Carolina,  24  Supreme 
Court  Reporter,  269). 

173 


TBE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tracts  under  which  such  property  or  rights  are  held 
is  void  and  powerless  to  affect  their  enjoyment." 

Acting  under  the  right  thus  declared  of  preventing 
a  State,  or  rather  the  officials  of  a  State,  from  acting 
under  laws  unconstitutional,  either  because  impairing 
the  obligation  of  contracts,  or  taking  property  without 
due  process  of  law  (forbidden  by  the  Fourteenth 
Amendment), the  federal  courts, while  declaring  them- 
selves unable  to  secure  to  private  individuals  an  en- 
forcement of  their  claims  against  States,  haVe  never- 
theless been  able  to  extend  their  protecting  power  to 
prevent  the  States  from  taking  action  upon  their  part 
to  enforce  against  individuals  and  against  its  federal 
officials  claims  not  supported  by  valid  laws. 

The  following  are  instances  illustrating  this.  In 
the  case  of  Osborn  v.  Bank  of  United  States  (9  Wh., 
738)  an  injunction  was  asked  to  restrain  the  Auditor 
of  the  State  of  Ohio  from  covering  into  the  state 
treasury  certain  funds  of  the  federal  bank,  taken  pos- 
session of  by  him  in  payment  of  a  tax  levied  against 
the  bank  by  the  State.  The  direct  interest  of  the 
State  in  the  suit  was  thus  apparent  and  admitted,  but 
the  Supreme  Court  held  that  the  suit  was  in  fact 
against  its  official  Osborn,  and  that,  inasmuch  as  he 
was  attempting  to  proceed  under  authority  of  an  al- 
leged law  that  was  in  fact  unconstitutional  and  void 
(because  an  interference  with  a  federal  instrument  of 
government),  he  could  not  justify  himself  and  an  in- 
junction would  therefore  lie. 

In  United  States  r.  Lee  (106  U.  S.,  196)  the 
principle  thus  applied  to  an  official  of  one  of  the 
States  was  enforced  against  the  agents  of  the  Federal 

174 


COERCION   OP   STATE   ACTION 


Government  itself.  Acting  under  orders  of  the  Presi- 
dent, which  he  had  no  legal  authority  to  give,  the 
Arlington  estate  of  General  Lee  had  been  taken  pos- 
session of  by  agents  of  the  National  Government. 
Upon  suit  in  ejectment  being  brought  by  the  heirs  of 
Lee  against  those  federal  officials  who  were  in  posses- 
sion of  the  property,  the  United  States,  through  its 
Attorney-General,  made  appearance  in  the  case  and 
set  up  the  fact  that  such  property  was  claimed  by 
itself,  and  that  the  defendants  held  it  as  its  own 
agents.  NotAvithstanding  this,  and  notwithstanding 
also  the  fact,  as  was  pointed  out  in  the  minority  opin- 
ion, that  a  government  was  able  to  hold  property  only 
through  its  agents,  the  Supreme  Court  gave  judgment 
for  the  plaintiffs,  holding  that  no  official,  federal  or 
state,  might  justify  himself  by  appealing  to  any  law 
or  order  that  was  not  constitutional.^ 

In  the  case  of  Louisiana  v.  Jumel  (107  U.  S.,  711) 
the  question  was  raised  as  to  the  authority  of  the  Su- 
preme Court  to  compel  a  State  to  pay  the  holders  of 
certain  bonds  their  face  value  and  interest  out  of  a 
fund  then  in  the  state  treasury.  In  declining  to  issue 
the  necessary  order,  the  Court,  while  admitting  the 
contractual  obligation  on  the  part  of  the  State,  said : 
"The  relief  asked  will  require  the  officers  against 
whom  the  process  goes  to  act  contrary  to  the  positive 
orders  of  the  supreme  political  power  of  the  State. 
...  In  the  Arlington  case  it  was  held  that  the  officers 
of  the  United  States,  holding  in  their  official  capacity 
the  possession  of  lands  to  which  the  United  States  had 

1  In  Tindal  v.  Wesley,  167  U.  S.,  204,  the  same  rule 
was  applied  to  the  States. 

175 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

no  title,  could  be  required  to  surrender  their  posses- 
sion to  the  rightful  owner,  even  though  the  United 
States  were  not  a  party  to  the  judgment  under  which 
the  eviction  was  to  be  had.  Here,  however,  the  money 
in  question  is  lawfully  the  property  of  the  State.  It 
is  in  the  manual  possession  of  an  officer  of  the  State. 
The  bondholders  never  owned  it.  The  most  that  they 
can  claim  is  that  the  State  ought  to  use  it  to  pay  their 
coupons,  but,  until  so  used,  it  is  in  no  sense  theirs." 
Furthermore,  the  Court  went  on  to  say :  ' '  The  remedy 
sought,  in  order  to  be  complete,  would  require  the 
Court  to  assume  all  the  executive  authority  of  the 
State,  so  far  as  it  related  to  the  enforcement  of  this 
law,  and  to  supervise  the  conduct  of  all  persons 
charged  with  any  official  duty  in  respect  to  the  levy, 
collection,  and  disbursement  of  the  tax  in  question 
until  the  bonds,  principal,  and  interest  were  paid  in 
full,  and  that,  too,  in  a  proceeding  to  which  the  State, 
as  a  State,  was  not  and  could  not  be  made  a  party." 
Referring  to  Osborn  v.  Bank  of  United  States,  the 
Court  said:  "No  one  pretended  [in  that  case]  that  if 
the  money  had  actually  been  paid  into  the  treasury, 
and  had  become  mixed  with  the  other  money  there,  it 
could  have  been  got  back  from  the  State  by  a  suit 
against  the  officers.  They  would  have  been  individu- 
ally liable  for  the  unlawful  seizure  and  conversion, 
but  the  recovery  would  be  against  them  individually 
for  the  wrongs  they  had  personally  done,  and  could 
have  no  effect  on  the  money  which  was  held  by  the 
State." 

In  the  Virginia   Coupon   Cases  every  conceivable 
176 


COERCION   OF   STATE   ACTION 


phase  of  the  subject  was  fought  out  by  the  State  and 
its  creditors.  Thus  in  Antoni  v.  Greenhow  (107  U.  S., 
769)  the  Supreme  Court  refused  a  mandamus  to  com- 
pel a  state  officer  to  receive  in  payment  of  taxes  cer- 
tain coupons  which  the  State  had  promised  so  to  re- 
ceive. But  when,  upon  the  coupons  being  tendered 
and  refused,  the  state  officials  proceeded  to  attempt  to 
collect  the  taxes  for  the  payment  of  which  the  coupons 
had  been  tendered,  the  Court,  in  Poindexter  v.  Green- 
how  (114  U.  S.,  270),  held  that  officer  subject  to  a 
suit  for  trespass,  for  acting  under  a  state  law  that  was 
unconstitutional  because  in  violation  of  the  contract 
which  the  State  had  made.  The  immunity  of  the 
Eleventh  Amendment,  said  the  Court,  ''is  undoubt- 
edly a  part  of  the  Constitution  of  equal  authority  with 
every  other,  but  no  greater,  and  to  be  construed  and 
applied  in  harmony  with  all  the  provisions  of  that 
instrument.  That  immunity,  however,  does  not  ex- 
empt the  State  from  the  operation  of  the  constitu- 
tional provision  that  no  State  shall  pass  any  law  im- 
pairing the  obligation  of  contracts ;  for  it  has  long 
been  settled  that  contracts  between  a  State  and  an  in- 
dividual are  as  fully  protected  by  the  Constitution  as 
contracts  between  two  individuals.  It  is  true  that  no 
remedy  for  a  breach  of  the  contract  by  a  State,  by 
way  of  damages  as  compensation,  or  by  means  of  pro- 
cess to  compel  its  performance,  is  open,  under  the 
Constitution,  in  the  Courts  of  the  United  States,  by  a 
direct  suit  against  the  State  itself  on  the  part  of  the 
injured  party,  being  a  citizen  of  another  State  or  a 
citizen  or  subject  of  a  foreign  State.  But  it  is  equally 
12  177 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

true  that  whenever,  in  a  controversy  between  parties 
to  a  suit,  of  which  these  courts  have  jurisdiction,  the 
question  arises  upon  the  validity  of  a  law  by  a  State 
impairing  the  obligation  of  its  contract,  the  jurisdic- 
tion is  not  thereby  ousted,  but  must  be  exercised  with 
whatever  legal  consequences  to  the  rights  of  the  liti- 
gants may  be  the  result  of  the  determination." 

There  is  but  one  exception  to  the  general  principle 
that  the  federal  courts  will  not  assume  the  right  affir- 
matively to  order  state  officials  to  perform  official  acts, 
and  this  is  when  the  acts  in  question  are  commanded 
by  valid  laws  and  are  of  a  purely  ministerial  char- 
acter; that  is,  acts  involving  the  exercise  of  no  judg- 
ment or  discretion.  Thus  in  The  Board  of  Liquidation 
V.  McComb  (92  U.  S.,  531)  the  Supreme  Court  said: 
"It  has  been  well  settled  that  when  a  plain,  public 
duty  requiring  no  exercise  of  discretion  is  to  be  per- 
formed, and  performance  is  refused,  any  person  who 
will  sustain  a  personal  injury  by  such  refusal  may 
have  a  mandamus  to  compel  its  performance ;  and 
when  such  duty  is  threatened  to  be  violated  by  some 
positive  official  act,  any  person  who  will  sustain  per- 
sonal injury  thereby,  for  which  adequate  compensa- 
tion cannot  be  had  at  law,  may  have  an  injunction  to 
prevent  it.  .  .  .  In  either  case,  if  the  officers  plead 
the  authority  of  an  unconstitutional  law  for  the  non- 
performance or  the  violation  of  his  duty,  it  will  not 
prevent  the  issuing  of  the  writ."  This  principle,  thus 
stated,  the  federal  courts  have  a  number  of  times  ap- 
plied to  state  officials.  Thus  in  the  case  of  Hartman 
V.  Greenhow  (102  U.  S.,  672)  the  Supreme  Court  en- 
forced a  contract  of  the  State  of  Virginia  by  com- 

178 


COERCION   OF   STATE   ACTION 


pelling  one  of  its  officers  to  receive  coupons  of  certain 
of  its  bonds  in  payment  of  taxes,  although  there  then 
existed  upon  the  statute  books  of  the  State,  a  law, 
which  the  Supreme  Court  held  unconstitutional,  for- 
bidding their  receipt. 


179 


CHAPTER   X 

FEDERAL    SUPERVISION    OF    STATE    DUTIES 

In  the  foregoing  pages  there  has  been  set  forth  in 
some  detail  the  principles  which  govern  the  question 
of  the  extent  to  which  the  Federal  Government  may 
compel  the  performance  by  the  governments  of  the 
individual  States  of  duties  constitutionally  laid  upon 
them.  We  turn  now  to  a  topic  which,  while  closely 
related  to  the  one  of  which  we  have  been  speaking,  is 
yet  distinct  from  it.  This  topic  is  the  extent  of  the 
legal  power  of  the  National  Government  to  examine 
state  laws  and  supervise  their  execution  with  a  view  to 
seeing  that  they  do  not  infringe  in  any  way  upon  the 
rights  secured  to  individuals  by  the  federal  Constitu- 
tion and  laws.  The  subject  now  to  be  considered  is 
thus  the  negative  power  of  the  United  States  Govern- 
ment to  prevent  the  violation  of  federal  rights  by  the 
States,  and  not  the  positive  power,  the  extent  of 
which  we  have  just  examined,  of  compelling  the  per- 
formance by  the  States  of  their  constitutional  duties. 
Prior  to  the  adoption  of  the  Fourteenth  Amendment 
in  1868  the  laws  of  the  individual  States,  so  long  as 
they  related  to  subjects  over  which  the  States  had 
the  right  of  legislation,  were  not  subject  to  examina- 
tion in  federal  courts   with  a  view  to   ascertaining 

180 


FEDERAL   SUPERVISION   OF   STATE   DUTIES 


whether  they  deprived  any  one  of  life,  liberty,  or 
property  without  due  process  of  law,  or  denied  to  any 
one  equal  legal  protection.  The  first  nine  amendments 
to  the  federal  Constitution  which  enumerated  the  fun- 
damental rights  of  individuals  that  might  not  be  vio- 
lated were,  from  the  beginning,  construed  to  limit  not 
the  States  but  the  Federal  Government  only.  Until, 
therefore,  the  Fourteenth  Amendment  was  adopted 
there  was,  so  far  as  the  federal  Constitution  and  laws 
were  concerned,  nothing  to  prevent  the  several  States 
from  enacting  laws  which  denied  to  their  own  citizens 
the  equal  protection  of  the  laws,  or  deprived  them  of 
life,  liberty,  and  property  without  due  process  of  law. 
The  only  limitation  laid  upon  the  States  by  the  Con- 
stitution was  that  they  should  enact  no  bills  of  at- 
tainder, no  ex  post  facto  laws,  or  laws  impairing  the 
obligation  of  contracts.  As  a  matter  of  fact,  indeed, 
all  of  the  States  had  by  their  own  constitutions  taken 
from  their  legislatures  the  power  to  enact  laws  upon 
certain  specified  topics,  and  forbidden  them  to  violate 
certain  declared  principles  of  justice  and  right.  But 
the  adoption  of  these  constitutional  limitations  was 
purely  voluntary  upon  their  part. 

In  1868,  however,  as  one  of  the  results  of  the  Civil 
War,  the  Fourteenth  Amendment  was  adopted,  which, 
after  declaring  that  "all  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside,"  goes  on  to  provide  that 
''no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of 
the  United  States;  nor  shall  any  State  deprive  any 

181 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

person  of  life,  liberty,  or  property  without  due  process 
of  law ;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws." 

For  a  number  of  years  after  the  adoption  of  this 
Amendment  it  was  by  no  means  certain  but  that  the 
effect  of  the  above-cited  provisions  would  be  to  endow 
the  United  States  Government  with  additional  powers 
so  great  as  fundamentally  to  alter  the  very  nature  of 
the  Union  itself.  There  can  be  no  question  but  that 
the  clauses  of  the  Amendment  that  we  have  quoted 
were  easily  susceptible  of  an  interpretation  that  would 
have  given  them  this  result,  and  that,  at  the  time  they 
were  framed  and  adopted  by  Congress  and  ratified  by 
the  necessary  number  of  state  legislatures,  there  were 
very  many  who  believed  that  they  would,  and  desired 
that  they  should,  work  this  revolutionary  change  in 
the  American  Constitutional  system.^  Fortunately, 
however,  as  all  must  now  believe,  the  Supreme  Court 
was  able  and  was  led  to  give  to  these  words  a  construc- 
tion that  robbed  them  of  such  an  effect.  This  it  did 
in  the  following  manner. 

In  1875  Congress  passed  a  so-called  Civil  Rights 
Act,  fixing  generally  the  penalties  to  which  state  offi- 
cials should  be  subject  for  depriving  any  citizen  of  the 
United  States  of  any  of  the  rights  secured  him  by  the 
Thirteenth  and  Fourteenth  Amendments,  and  declar- 
ing specifically  that  negroes  should  receive  the  same 

^  See  especially  the  debates  attendant  upon  the  passage  of  the 
Civil  Rights  Bill  of  1866,  the  doubts  as  to  the  constitutionality 
of  which  led  to  the  adoption  of  the  Fourteenth  Amendment. 
See  also  the  dissenting  opinion  of  Justice  Field  in  the  Civil 
Rights  Cases,  109  U.  S.,  3,  in  which  Justices  Swayne,  Bradley, 
and  Chief  Justice  Chase  concurred. 

182 


FEDERAL   SUPERVISION   OF   STATE   DUTIES 

treatment  at  public  inns,  hotels,  railways,  theaters, 
etc.,  as  that  enjoyed  by  white  persons.  The  im- 
portance of  this  act  lay  in  the  fact  that  by  passing  it 
Congress  indicated  that  it  interpreted  the  Fourteenth 
Amendment  as  giving  it  power  not  simply  to  punish 
persons  who  should  deprive  others  of  any  of  the 
rights  mentioned  in  that  Amendment,  but  itself  to  de- 
termine specifically  what  those  rights  should  be.  If 
this  were  to  be  accepted  as  the  correct  interpretation 
of  the  power  of  Congress  under  this  Amendment,  it 
was  clear  that  the  reserved  powers  of  the  States  would 
henceforth  be  at  the  mercy  of  the  federal  legislative 
body;  for  thus  the  way  would  be  opened  to  Congress, 
should  it  see  fit,  to  convert  by  its  statutes  all  private 
rights  into  federal  rights  and  as  such  exclude  them 
from  state  regulation  or  violation. 

In  the  case  of  Ex  parte  Virginia  (100  U.  S.,  339) 
that  portion  of  the  Civil  Rights  Act  which  forbade 
state  officials  to  deny  to  any  one  the  equal  pro- 
tection of  the  law  was  held  constitutional,  the  Court 
saying:  "The  prohibitions  of  the  Fourteenth  Amend- 
ment are  addressed  to  the  States.  ...  A  State  acts 
by  its  legislature,  its  executive,  or  its  judicial  authori- 
ties. It  can  act  in  no  other  way.  The  constitutional 
provision,  therefore,  must  mean  that  no  agency  of 
the  State,  or  of  the  officers  or  agents  by  whom  its 
powers  are  exerted,  shall  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws.  Who- 
ever, by  virtue  of  public  position  under  a  state  gov- 
ernment, deprives  another  of  life,  liberty,  or  property 
without  due  process  of  law,  or  denies  or  takes  away 
the  equal  protection  of  the  laws,  violates  the  eonsti- 

183 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

tutional  inhibition ;  and  as  lie  acts  in  the  name  of  and 
for  the  State,  and  is  clothed  with  the  State's  power, 
his  act  is  that  of  the  State.  This  must  be  so,  or  the 
constitutional  prohibition  has  no  meaning."  In 
Strauder  v.  West  Virginia  (100  U.  S.,  303)  the  Su- 
preme Court  held  unconstitutional  and  void  an  act  of 
West  Virginia  which  excluded  negroes  from  juries. 
In  the  Civil  Rights  Cases  (109  U.  S.,  3),  however, 
the  Supreme  Court  declared  unconstitutional  a  portion 
of  the  Civil  Rights  Act  of  1875  and  laid  down  a  doc- 
trine that  very  considerably  lessened  the  power  of 
Congress  under  the  Fourteenth  Amendment.  The 
doctrine  thus  declared  was  that  the  invasion  of  rights 
by  private  individuals  was  not  a  subject  concerning 
which  Congress  might  legislate.  The  prohibitions  of 
the  Amendments  being  leveled  at  the  States,  Congress, 
the  Court  asserted,  might  legislate  only  regarding  the 
violation  of  those  Amendments  by  the  States.  "This," 
said  the  Court,  "is  the  legislative  power  conferred 
upon  Congress,  and  this  is  the  whole  of  it.  It  does  not 
invest  Congress  with  power  to  legislate  upon  subjects 
which  are  within  the  domain  of  state  legislation;  but 
to  provide  modes  of  relief  against  state  legislation  or 
state  action  of  the  kind  referred  to.  It  does  not  au- 
thorize Congress  to  create  a  code  of  municipal  law  for 
the  regulation  of  private  rights.  .  .  .  Until  some  state 
law  has  been  passed,  or  some  state  action  through  its 
officers  or  agents  has  been  taken,  adverse  to  the  right 
of  citizens  sought  to  be  protected  by  the  Fourteenth 
Amendment,  no  legislation  of  the  United  States  under 
said  Amendment,  nor  any  proceedings  under  such 
legislation  can  be  called  into  activity."     Continuing, 

184 


FEDERAL   SUPERVISION   OF   STATE   DUTIES 

the  Court  said:  "If  this  legislation  [the  Civil  Rights 
Act]  is  appropriate  for  enforcing  the  prohibitions  of 
the  Amendment,  it  is  difficult  to  see  where  it  is  to  stop. 
Why  may  not  Congress,  with  equal  show  of  authority, 
enact  a  code  of  laws  for  the  enforcement  and  vindi- 
cation of  all  rights  of  life,  liberty,  and  property?  If 
it  is  supposable  that  the  States  may  deprive  persons 
of  life,  liberty,  and  property  without  due  process  of 
law,  and  the  Amendment  itself  does  suppose  this,  why 
should  not  Congress  proceed  at  once  to  prescribe  due 
process  of  law  for  the  protection  of  every  one  of  these 
fundamental  rights,  in  every  possible  case,  as  well  as 
to  prescribe  equal  privileges  in  inns,  public  convey- 
ances, and  the  theaters?  " 

In  the  famous  Slaughter  House  Cases  (16  Wall., 
36),  decided  in  1873,  the  Supreme  Court  laid  down  the 
doctrine  which  has  never  since  been  departed  from 
that  the  words  "privileges  and  immunities  of  citizens 
of  the  United  States,"  as  used  in  that  clause  of  the 
Fourteenth  Amendment  which  forbids  their  abridg- 
ment by  the  States,  refers  simply  to  such  special  priv- 
ileges and  immunities  as  the  citizen  possesses  by  reason 
of  his  national  citizenship,  and  that,  therefore,  the 
abridgment  by  a  State  of  such  privileges  and  immuni- 
ties as  its  citizens  enjoy  simply  by  virtue  of  their 
state  citizenship,  is  not  prohibited.  It  need  not  be 
said  that  this  was  a  decision  equal  in  importance  to, 
if  not  greater  than  that  rendered  in  the  Civil  Rights 
Cases.  To  have  so  construed  the  clause  in  question 
as  to  make  it  cover  all  the  rights  of  citizenship,  state 
and  federal  alike,  would  practically  have  been  to 
transfer  to  the  Federal  Government  almost  the  entire 

185 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

police  power  of  the  States— that  broad  power  in  the 
exercise  of  which  probably  nine  tenths  of  the  State's 
statutes  are  passed  and  which  Cooley  defines  as  "The 
whole  system  of  internal  regulation  by  which  the  State 
seeks  not  only  to  preserve  the  public  order  and  to  pre- 
vent offenses  against  the  State,  but  also  to  establish 
for  the  intercourse  of  citizens  with  citizens  those  rules 
of  good  manners  and  good  neighborhood  which  are 
calculated  to  prevent  a  conflict  of  rights,  and  to  insure 
to  each  the  uninterrupted  enjoyment  of  his  own  so 
far  as  it  is  reasonably  consistent  with  a  like  enjoyment 
of  rights  by  others.  "^  It  is  no  wonder,  therefore,  that 
when  called  upon  to  decide  between  the  two  possible 
constructions  the  Court  said:  "We  do  not  conceal 
from  ourselves  the  great  responsibility  which  this 
duty  devolves  upon  us.  No  questions  so  far-reaching 
and  pervading  in  their  consequences,  so  profoundly 
interesting  to  the  people  of  this  country,  and  so  im- 
portant in  their  bearings  upon  the  relations  of  the 
United  States,  and  of  the  several  States  to  each  other 
and  to  the  citizens  of  the  States  and  of  the  United 
States,  have  been  before  this  Court  during  the  official 
life  of  any  of  its  present  members." 

By  referring  to  the  "history  of  the  times"  at 
which  the  last  three  amendments  were  adopted,  the 
Court  found  in  them  all  one  underlying  purpose  which 
was  "the  freedom  of  the  slave  race,  the  security  and 
firm  establishment  of  that  freedom  and  the  protection 
of  the  newly  made  freeman  and  citizen  from  oppres- 
sions of  those  who  had  formerly  exercised  unlimited 
dominion  over  him."  This  being  the  main  and  con- 
trolling motive  that  dictated  these  Amendments,  the 
1  "Constitutional  Limitations,"  p.  572. 

186 


FEDERAL   SUPERVISION   OF   STATE   DUTIES 

majority  of  the  Court  refused  to  give  them,  however 
general  their  terms,  another  and  far  more  radical 
meaning.  That  there  was,  immediately  after  the  Civil 
War,  a  strong  sentiment  in  favor  of  a  stronger  Na- 
tional Government,  the  majority  of  the  Court  did  not 
deny;  but  they  declared,  "however  pervading  this 
sentiment,  and  however  it  may  have  contributed  to 
the  adoption  of  the  Amendments  we  have  been  con- 
sidering, we  do  not  see  in  those  Amendments  any  pur- 
pose to  destroy  the  main  features  or  the  general  sys- 
tem. Under  the  pressure  of  all  the  excited  feeling 
growing  out  of  the  war,  our  statesmen  have  still  be- 
lieved that  the  existence  of  the  States  with  powers  for 
domestic  and  local  government,  including  the  regula- 
tion of  civil  rights — the  rights  of  person  and  of  prop- 
erty—was essential  to  the  perfect  working  of  our 
complex  form  of  government,  though  they  have 
thought  proper  to  impose  additional  limitations  on  the 
States,  and  to  confer  additional  power  on  that  of  the 
nation. ' ' 

In  result,  the  effect  of  the  decision  of  the  Supreme 
Court  in  the  Slaughter  House  Cases  was  to  decide  that 
that  clause  of  the  Fourteenth  Amendment  which  pro- 
hibits the  States  from  abridging  the  privileges  and 
immunities  of  citizens  of  the  United  States,  imposes 
absolutely  no  new  limitations  upon  the  States,  for 
prior  to  the  adoption  of  the  Amendment  of  which  it 
constituted  a  part,  the  States  were  confessed  by  all 
to  be  without  constitutional  power  to  abridge  federal 
privileges  or  immunities.^ 

iln  the  recent  case  of  Maxwell  Dow,  176  U.  S.,  581,  decided 
in  1900,  the  claim  was  examined  and  negatived  that  the  privileges 
and  immunities  secured  against  federal  infringement  by  the  first 

187 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

Although  by  the  decision  in  the  Slaughter  House 
and  subsequent  eases  in  the  Supreme  Court,  the  com- 
mand laid  upon  the  States  to  respect  federal  privileges 
and  immunities  has  been  shorn  of  all  but  declaratory 
significance,  and  the  general  police  power  confirmed 
in  the  Commonwealths,  the  other  prohibitions  of  the 
first  section  of  the  Fourteenth  Amendment  have  been 
so  construed  by  the  Supreme  Court  as  to  give  to  the 
Federal  Government  a  very  extensive  supervisory 
jurisdiction  over  state  legislation  which  it  did  not  pos- 
sess prior  to  1868.  Whenever  the  claim  has  been 
made  that  a  state  law  has  worked  a  deprivation  of  life, 
liberty,  or  property  without  due  process  of  law,  or  has 
resulted  in  a  denial  to  any  person  of  the  equal  protec- 
tion of  the  laws,  the  federal  courts  have  assumed  juris- 
diction, and,  when  the  claim  has  been  made  good,  have 
declared  the  statutes  involved  void.^ 

It  would  carry  us  beyond  the  scope  of  this  volume 
to  show  in  any  detail  the  manner  in  which  this  addi- 
tional right  of  federal  supervision  over  state  legisla- 
tion has  been  exercised.  It  is  appropriate  to  say,  how- 
ever, that  the  phrase  "equal  protection  of  the  laws" 

ten  Amendments  are  to  be  regarded  as  federal  privileges  and  im- 
munities which,  according  to  the  Fourteenth  Amendment,  may 
not  be  altered  or  denied  by  the  States.  This  point  had  previ- 
ously been  raised  in  the  Spies  case  {Ex  parte  Spies,  123  U.  S., 
131)  but  not  passed  upon. 

1  In  the  Slaughter  House  Cases,  the  Court  declared  relative  to 
the  clause  providing  for  the  equal  protection  of  the  laws:  "We 
doubt  very  much  whether  any  action  of  a  State  not  directed  by 
way  of  discrimination  against  the  negroes  as  a  class,  or  on  ac- 
count of  their  race,  will  ever  be  held  to  come  within  the  purview 
of  this  provision."  As  a  matter  of  fact,  however,  this  oUter  dic- 
tum has  been  repeatedly  overruled. 

188 


FEDERAL   SUPERVISION   OF   STATE   DUTIES 


has  not  been  construed  to  secure  to  all  persons  in  the 
United  States  the  benefit  of  the  same  laws  and  reme- 
dies, but  only  to  provide  that  no  one  within  a  State's 
jurisdiction  shall  be  deprived  of  legal  rights  or  sub- 
jected to  legal  burdens  to  which  all  other  persons  or 
similar  classes  of  persons  are  entitled.     Furthermore, 
it  may  be  added  that  the  term  "due  process  of  law" 
has  been  defined  as  simply  ' '  a  course  of  legal  proceed- 
ings according  to  those  rules  and  principles   which 
have  been  established  in  our  systems  of  jurisprudence 
for  the  protection  and  enforcement  of  legal  rights. ' '  ^ 
Thus  it  has  been  held  that  due  process  of  law  does  not 
necessarily  involve  the  right  to  a  trial  by  jury  in  civil 
suits  at  common  law,  or  even  to  a  presentment  of  a 
grand  jury  in  cases  of   felony  and  capital   crimes. 
"Apparently,"    said   Justice   Field   in    a   dissenting 
opinion  in  a  state  court  (Carleton  v.  Rugg,  149  Mass., 
550),  "any  mode  of  proceeding  duly  established  by  a 
State  which  provides  for  an  impartial  trial,  and  does 
not   violate   the    fundamental   principles    of    general 
jurisprudence,  would  be  due  process  of  law  within  the 
meaning    of    that    instrument    [the    Constitution]." 
And  the  Supreme  Court  itself  has  said:  "If  the  laws 
enacted  by  a  State  be  within  the  legitimate  sphere  of 
legislative  activity,  and  their  enforcement  be  attended 
with  observance  of  those  general  rules  which  our  sys- 
tem of  jurisprudence  presents  for  the  security  of  pri- 
vate rights,  the  harshness,  injustice,  and  oppressive 
character  of  such  laws  will  not  invalidate  them  as  af- 
fecting life,  liberty,  or  property  without  due  process 
of  law"  (Mo.  Pacific  R.  R.  v.  Humes,  115  U.  S.,  512). 
1  Pennoyer  v.  Neff,  95  U.  S.,  714. 
189 


CHAPTER   XI 

THE  POWER  OP  THE  UNITED  STATES  TO  ACQUIRE 
TERRITORY 

In  the  chapters  that  have  gone  before  the  effort  has 
been  made  to  set  forth  the  constitutional  relations 
subsisting  between  the  Union  and  its  commonwealth 
members.  From  the  very  beginning,  however,  the 
American  constitutional  system  has  included  other 
political  units  than  the  States.  These  units  are  Ter- 
ritories, Dependencies,  and  a  Federal  District  or  seat 
of  National  Government.^  To  a  consideration  of  the 
constitutional  questions  incident  to  the  annexation 
and  government  by  the  National  Government  of  the 
territories  and  peoples  of  which  these  political  ele- 
ments are  composed,  we  shall  now  turn.  This  will  in- 
volve a  discussion  of  the  following  points:  (1)  The 
constitutional  power  of  the  United  States  to  acquire 
territories;  (2)  The  modes  in  which  and  purposes  for 
which  they  may  be  acquired;  and  (3)  Their  constitu- 
tional status.    First  then  as  to 

The   Constitutional  Power  of  the  United  States  to  Ac- 
quire Territory.      At  the  time  of  the  adoption  of  the 

iTlie  term  "Dependency"  can  hardly  be  said  to  have  been  as 
yet  accepted  as  a  technically  correct  term,  and  possibly  never 
may  be.  In  default,  however,  of  a  better  word  the  term  will  be 
here  provisionally  employed. 

190 


THE  POWER  TO  ACQUIRE  TERRITORY 

Constitution  and  the  establishment  thereunder  of  the 
present  National  Government,  the  territory  subject 
to  the  sovereignty  of  the  United  States  consisted  of 
the  respective  territories  of  the  thirteen  original 
States  and  vast  reaches  of  lands  to  the  west,  that 
lying  north  and  west  of  the  Ohio  River  being  known- 
as  the  Northwest  Territory.  These  areas  had  been 
originally  ceded  to  the  old  Confederation  by  the  States 
and  governed  according  to  the  provisions  of  the 
famous  Northwest  Ordinance  of  1787.  Upon  the  es- 
tablishment of  the  new  government  in  1789  they  were 
turned  over  to  it.^  Contemporary  opinion  and  the 
practice  of  many  years  showed  the  existence  of  the 
idea  that  from  these  lands  new  States  were  to  be 
formed  as  fast  as  the  development  of  their  populations 
and  resources  should  warrant.  Until  that  time  they 
were  to  be  under  the  exclusive  control  of  the  Federal 
Government.  The  provisions  inserted  in  the  new  Con- 
stitution bearing  upon  this  point  are  the  following : 
"New  States  may  be  admitted  by  the  Congress  into 
this  Union"  (Article  IV,  Sec.  3,  Clause  1);  "The 
Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory 
or  other  property  belonging  to  the  United  States  " 
(Article  IV,  Sec.  3,  Clause  2). 

No  express  power  is  given  the  United  States  by  the 
Constitution  to  acquire  additional  territory.  In  1803, 
however,  the  vast  Louisiana  Territory  was  purchased 
from  France  and  annexed  to  the  Union ;  in  1819  Flor- 
ida was  obtained  from  Spain;  in  1845  the  State  of 

^  To  this  new  government  Georgia  and  North  Carolina  also 
later  ceded  their  western  lands. 

191 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Texas  was  annexed ;  in  1846  the  Oregon  Territory  was 
obtained  through  discovery,  occupation,  and  conven- 
tion with  England;  in  1848  and  1853  additional  ter- 
ritory was  obtained  by  cession  from  Mexico;  in  1856 
the  annexation  of  the  Guano  Islands  was  authorized 
by  a  congressional  statute;  in  1867,  Alaska, "the  first 
territory  non-contiguous  to  the  United  States,  was  ob- 
tained by  purchase  from  Russia;  in  the  same  year 
Midway  Island  was  taken  possession  of  by  the  Presi- 
dent; in  1898  the  Hawaiian  Islands  were  annexed;  in 
1898,  as  a  result  of  the  Spanish-American  War,  the 
islands  of  Porto  Rico,  the  Philippines,  and  Guam  came 
under  the  sovereignty  of  the  United  States;  and  in 
1900  three  of  the  Samoan  Islands  were  acquired.^ 

From  what  grant  of  power  we  may  now  ask  did  the 
United  States  Government  derive  the  authority  thus 
to  increase  its  territory? 

A\nien,  in  1790,  North  Carolina  made  a  cession  to 
the  United  States  of  its  title  to  western  territory,  this 
was  accepted  by  Congress  in  the  act  of  April  2,  1790, 
without  constitutional  question.  This,  it  will  be  ob- 
served, however,  involved  only  a  transfer  of  title  from 
a  State  to  the  Nation  and  not  an  annexation  of  terri- 
tory foreign  to  the  United  States.  The  acquisition  of 
the  Louisiana  Territory  was,  however,  of  this  latter 
character,  and  Jefferson,  then  President,  felt,  and  ex- 
pressed, as  we  know,  most  serious  doubts  as  to  the 
constitutionality  of  the  act,  though  upon  grounds  of 
political  expediency  he  urged  that  the  treaty  pro- 
viding for  it  be  ratified,  and,  if  necessary,  a  constitu- 

1  The  term  "Insular  Possessions"  has  been  officially  applied 
to  the  islands  owned  by  the  United  States. 

192 


THE  POWER  TO   ACQUIRE   TERRITORY 

tional  amendment  giving  to  the  National  Govern- 
ment the  necessary  power  be  adopted.  Writing 
to  John  C.  Brecl<enridge,  he  declared:  "The 
Constitution  has  made  no  provision  for  holding  for- 
eign territory,  still  less  for  incorporating  foreign  na- 
tions into  the  Union.  The  Executive,  in  seizing  the 
fugitive  occurrence  which  so  much  advances  the  good 
of  the  country,  has  done  an  act  beyond  the  Constitu- 
tion, The  Legislators,  in  casting  behind  them  meta- 
physical subtleties  and  risking  themselves  like  faithful 
servants,  must  ratify  and  pay  for  it  and  throw  them- 
selves on  their  country  for  doing  for  them  unauthor- 
ized what  we  know  they  would  have  done  for  them- 
selves, had  they  been  in  a  situation  to  do  it." 

Jefferson  stood  by  no  means  alone  in  his  doubts  as 
to  the  constitutional  power  of  the  United  States  to 
acquire  foreign  territory,  but  these  doubts  were  not 
sufficiently  general  to  lead  the  people  to  give  expressly, 
by  constitutional  amendment,  that  right,  the  implied 
existence  of  which  was  questioned,  and  since  that 
time  both  political  and  judicial  precedent  have  estab- 
lished beyond  all  uncertainty  the  implied  existence  in 
the  National  Government  of  the  necessary  authority 
in  this  matter. 

The  express  grants  of  authority  which  have  at  dif- 
ferent times  been  referred  to  as  including  by  impli- 
cation the  right  on  the  part  of  the  United  States  to 
acquire  foreign  territory  are  the  following: 

1.  The  power  to  declare  and  carry  on  war  (Art.  I, 
Sec.  8,  Clause  11). 

2.  The  power  to  make  treaties  (Art.  II,  Sec.  2, 
Clause  2) . 

13  193 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Besides  these  sources  not  a  few  have  argued 
the  possession  by  the  United  States  of  this  au- 
thority because  of  its  "inherent  sovereignty."  This 
theory,  though  given  a  certain  support  by  several 
obiter  dicta  of  the  Supreme  Court/  is,  as  earlier 
explained,  an  invalid  one.  To  concede  to  the  National 
Government  powers  neither  expressly  granted  nor 
implied  from  those  expressly  granted,  but  as  founded 
simply  upon  its  sovereignty,  is,  in  effect,  to  make  of 
that  government  a  government  of  unenumerated  in- 
stead of  enumerated  powers.  As  was  declared  by 
Taney  in  denying  that  the  President  had  the  power  to 
authorize  the  suspension  of  the  writ  of  habeas  corpus: 
"Nor  can  any  argument  be  drawn  from  the  nature  of 
sovereignty.  .  .  .  The  government  of  the  United 
States  is  one  of  delegated  and  limited  powers.  It 
derives  its  existence  and  authority  altogether  from  the 
Constitution,  and  neither  of  its  branches  can  exercise 
any  of  the  powers  of  government  beyond  those  speci- 
fied and  granted. ' '  - 

Turning  now  to  the  proper  view  which  holds  the 
power  to  annex  territory  an  implied  one,  we  find  that 
the  Supreme  Court  has  upon  different  occasions  as- 
cribed it  to  each  of  the  two  express  powers  that  we 
have  mentioned.  In  American  Insurance  Co.  v. 
Canter  {1  Pet.,  511)  Marshall  declared:     "The  Con- 

1  American  Insurance  Co.  r.  Canter,  1  Pet.,  511 ;  Mormon  Church 
r.  United  States,  136  U.  S.,  1 ;  United  States  v.  Huekabee,  16 
Wall.,  414 ;  Jones  v.  United  States,  137  U.  S.,  202,  Cf.  Gardiner, 
"Our  Right  to  Acquire  and  Hold  Foreign  Territory,"  p.  6;  Ma- 
goon,  "Eeporton  Legal  Status  of  the  Territory,"  etc.,  H.  Doc. 
234,  56th  Cong.,  1st  Session,  p.  3. 

2  Tide  Tyler,  "Life  of  Taney,"  p.  651. 

194 


THE   POWER   TO   ACQUIRE   TERRITORY 

stitution  confers  absolutely  upon  the  government  of 
the  Union  the  powers  of  making  war  and  of  making 
treaties;  consequently  that  government  possesses  the 
power  of  acquiring  territory,  either  by  conquest  or 
treaty."  This  dictum  is  approvingly  quoted  in  one 
of  the  recent  so-called  Insular  Cases  (De  Lima  v.  Bid- 
will,  182  U.  S.,  1),  decided  in  1901.^ 

In  addition  to  the  above  sources  it  has  been  argued 
by  some,  and  even  intimated  on  one  or  two  occasions 
by  the  Supreme  Court,  that  the  power  to  acquire  new 
territory  may  be  found  in  the  right  of  Congress  to 
admit  new  states  to  the  Union.  Not  only,  however,  is 
reference  to  this  source  for  authority  unnecessary,  but, 
when  appealed  to,  would  not  seem  to  yield  to  the  Na- 
tional Government  as  ample  powers  as  are  furnished 
it  when  the  treaty  and  war  powers  are  relied  upon.^ 

According  to  the  general  principles  of  International 

1  To  the  same  effect  see  Mormon  Church  r.  United  States,  136 
U.  S.,  1. 

2  "If  it  [the  power  of  annexation]  is  to  be  implied  only  from 
the  latter  power  [the  right  to  admit  new  States],  it  would  seem 
quite  reasonable  to  hold  that  it  could  be  exercised  in  any  case 
only  for  the  purpose  of  creating  a  new  State  out  of  the  acquired 
territory,  and  there  would  be  no  power  to  govern  it  except  for 
that  purpose ;  but  the  right  of  Congress  to  admit  the  acquired 
territory  as  a  State  or  States,  or  to  refuse  to  do  so,  according  to 
its  own  judgment  and  discretion,  is  universally  admitted,  and, 
therefore,  it  would  seem  to  follow  that  the  power  to  acquire  and 
govern  cannot  be  derived  from  the  power  to  admit,  for,  if  it  did, 
all  territory  acquired  by  either  of  the  methods  stated  would  have 
to  be  converted  into  a  State  or  States.  It  may  be  said  that  no  ter- 
ritory ought  to  be  acquired  which  cannot  be  ultimately  fitted  for 
admission  as  a  State  or  States— but  this  is  a  political  and  not  a 
judicial  question."— Address  of  John  G.  Carlisle  before  the  Amer- 
ican Bar  Association,  1902. 

195 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Law,  every  sovereign  State  has  the  right  to  acquire 
territory  by  discovery  and  occupation.  Whether  or 
not,  however,  the  United  States  has  that  right,  when 
considered  from  the  viewpoint  of  its  own  Constitution, 
is  not  at  once  as  obvious.  However,  the  Supreme 
Court  has  in  effect  recognized  as  valid  an  exercise  of 
this  right  by  the  United  States.  This  it  did  under  the 
following  circumstances. 

In  1856  Congress,  by  a  statute  which  was  reenacted 
in  the  Revised  Statutes,  declared  that  whenever  any 
citizen  of  the  United  States  should  discover  a  deposit 
of  guano  on  any  island,  rock,  or  key  not  within  the 
lawful  jurisdiction  of  any  other  government,  and  not 
occupied  by  the  citizens  of  any  other  government,  and 
should  take  possession  thereof,  such  island,  rock,  or 
key  might,  at  the  discretion  of  the  President  "be  con- 
sidered as  appertaining  to  the  United  States."  Fur- 
thermore, the  act  Avent  on  to  declare,  all  crimes  com- 
mitted on  such  island,  rock,  or  key  should  be  punishable 
according  to  United  States  law  in  the  federal  courts. 
Upon  one  Jones  being  convicted  of  murder  under  the 
provisions  of  this  statute  he  took  an  appeal  to  the 
Supreme  Court  upon  the  ground  that  the  federal  law 
and  federal  court  could  not  take  cognizance  of  acts 
committed  on  the  island  in  question  because  that 
island  was  not  constitutionally  a  part  of  the  United 
States.  In  overruling  this  plea  the  Supreme  Court 
spoke  as  follows :  ' '  By  the  law  of  nations,  recognized 
by  all  civilised  States,  dominion  of  new  territory  may 
be  acquired  by  discovery  and  occupation,  as  well  as 
by  cession  or  conquest;  and  when  citizens  or  subjects 
of  one  nation,  in  its  name  and  by  its  authority  or 

196 


THE   POWER   TO   ACQUIRE   TERRITORY 

with  its  assent,  take  and  hold  actual,  continuous,  and 
useful  possession  (although  only  for  the  purpose  of 
carrying  on  a  particular  business,  as  catching  and  cur- 
ing fish,  or  working  mines)  of  territory  unoccupied  by 
any  other  government  or  its  citizens,  the  nation  to 
which  they  belong  may  exercise  such  jurisdiction  and 
for  such  period  as  it  sees  fit  over  territory  so  acquired. 
This  principle  affords  ample  warrant  for  the  legisla- 
tion of  Congress  concerning  Guano  Islands.  .  .  .  Who 
is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is 
not  a  judicial,  but  a  political  question,  the  determina- 
tion of  which  by  the  legislative  and  executive  depart- 
ments of  any  government  conclusively  binds  the 
judges,  as  well  as  all  other  officers,  citizens,  and  sub- 
jects of  that  government.  This  principle  has  always 
been  upheld  by  this  court,  and  has  been  affirmed  under 
a  great  variety  of  circumstances"  (Jones  v.  United 
States,  137  U.  S.,  202). 

This  case  thus  not  only  practically  upheld  the  right 
of  the  United  States  to  acquire  territory  by  discovery 
and  occupation,  but  came  very  near  to  applying,  if 
not  explicitly  stating,  the  principle,  which  we  believe 
to  be  a  dangerous  if  not  an  invalid  one,  that  the  United 
States  may  exercise  a  power  not  enumerated  in  the 
Constitution,  provided  it  be  a  power  generally  pos- 
sessed by  sovereign  States.  It  may  possibly  be  argued, 
however,  that  the  right  thus  to  acquire  territory  may 
be  upheld,  and  was  intended  in  the  Jones  case  to  be 
upheld,  as  a  power  impliedly  included  within  the 
general  power  given  the  Union  to  control  all  matters 
subject  to  regulation  by  the  law  of  nations. 


197 


CHAPTER   XII 

THE  MODES  IN  WHICH,  AND  PURPOSES  FOR  WHICH,  TER- 
RITORY MAY  BE  ACQUIRED  BY  THE  UNITED  STATES 

Constitutional  Modes  of  Acquiring  Territory.  Hav- 
ing shown  the  constitutional  power  of  the  United 
States  to  acquire  territory  whether  by  treaty,  con- 
quest, or  discovery  and  occupation,  we  now  approach 
the  question  as  to  the  modes  by  which  this  federal 
authority  may  be  exercised. 

A  history  of  the  territorial  expansion  of  the  United 
States  show  that  territories  have  been  annexed  in  three 
different  ways:  (1),  by  Statute,  (2),  by  Treaty,  and 
(3),  by  Joint  Resolution. 

The  process  of  extending  American  sovereignty  by 
simple  statute  and  executive  action  authorized  there- 
by, was  illustrated,  as  we  have  just  seen,  in  the  case 
of  the  Guano  Islands. 

The  annexation  of  territory  by  treaty  has  been  the 
method  most  usually  employed.  Thus  the  Louisiana 
Territory,  Florida,  Alaska,  the  Mexican  cessions,  the 
Samoan  Islands,  Porto  Rico,  and  the  Philippines  were 
obtained  in  this  manner. 

In  some  cases  the  United  States  was  in  actual  effec- 
tive military  possession  of  the  territories  thus  acquired 
for  some  time  prior  to  the  treaties  that  provided  for 

198 


HOW  TERRITORY  MAY  BE  ACQUIRED 

their  transfer  to  the  United  States.  The  Supreme 
Court  has  uniformly  held  that  during  this  period  of 
military  possession,  but  before  formal  transfer  by 
treaty,  the  lands  in  question  remain  foreign  terri- 
tory. Thus  in  Fleming  v.  Page  (9  How.,  603)  the 
Court  said:  "A  war  .  .  .  declared  by  Congress  can 
never  be  presumed  to  be  waged  for  the  purpose  of 
conquest  or  the  acquisition  of  territory;  nor  does  the 
law  declaring  the  war  implj^  an  authority  to  the  Presi- 
dent to  enlarge  the  limits  of  the  United  States  by 
subjugating  the  enemy's  country.  The  United 
States,  it  is  true,  may  extend  its  boundaries  by  con- 
quest or  treaty,  it  may  demand  the  cession  of  territory 
as  the  condition  of  peace  in  order  to  indemnify  its  citi- 
zens for  the  injuries  they  have  suffered,  or  to  reim- 
burse the  government  for  the  expense  of  the  war ;  but 
this  can  be  done  only  by  the  treaty-making  power 
or  the  legislative  authority,  and  is  not  a  part  of  the 
power  conferred  upon  the  President  by  the  declaration 
of  war.  His  duty  and  his  power  are  purely  military. 
...  He  may  invade  the  hostile  country  and  subject 
it  to  the  sovereignty  and  authority  of  the  United 
States;  but  his  conquests  do  not  enlarge  the  boun- 
daries of  this  Union  nor  extend  the  operations  of  our 
institutions  and  laws  beyond  the  limits  before  assigned 
to  them  by  the  legislative  power." 

This  principle,  thus  laid  down,  has  been  reaffirmed 
in  the  recent  Insular  Cases  in  which  was  determined 
the  constitutional  status  of  the  islands  obtained  from 
Spain. ^ 

1  Dooley  r.United  States,  182  U.  S.,  222.  President  McKinley  was 
criticized,  and  vdtli  justice,  for  issuing  on  December  21, 1898,  that 

199 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


In  two  instances,  that  of  Texas  in  1845,  and  Hawaii 
in  1898,  the  sovereignty  of  the  United  States  has  been 
extended  over  new  territory  by  means  of  a  Joint  Reso- 
lution of  the  Houses  of  Congress.  In  the  ease  of 
Texas  an  attempt  had  been  made  to  annex  the  State 
by  treaty,  but  this  requiring  a  two  thirds  favorable 
vote  in  the  Senate,  had  failed.  Thereupon  the  same 
end  was  secured  by  a  Joint  Resolution  which  needed 
but  a  simple  majority  vote  in  each  of  the  two  branches 
of  the  national  legislature,  with,  of  course,  the  ap- 
proval of  the  President.  This  resolution  provided 
that  "Congress  doth  consent  that  the  territory  prop- 
erly included  within  and  rightfully  belonging  to  the 
republic  of  Texas  may  be  erected  into  a  new  State 
to  be  called  the  State  of  Texas  with  a  republican  form 
of  government  to  be  adopted  by  the  people  of  said 
republic,  by  deputies  in  convention  assembled,  with 
the  consent  of  the  existing  government,  in  order  that 
the  same  may  be  admitted  as  one  of  the  States  of  the 
Union."  Upon  Texas  taking  the  action  called  for  by 
this  clause.  Congress  later  by  Joint  Resolution  de- 
clared Texas  one  of  the  States  of  the  American  Union. 

The  peculiarity  of  the  annexation  of  this  State  was 

is,  on  a  date  prior  to  the  ratification  of  the  treaty  with  Spain  ceding 
the  Philippines,  an  executive  order  in  which  he  declared:  "With 
the  signature  of  the  treaty  of  peace  between  the  United  States 
and  Spain  by  their  respective  plenipotentiaries  at  Paris  on  the 
10th  instant,  and  as  the  result  of  the  victories  of  American  arms, 
the  future  control,  disposition,  and  government  of  the  Philippine 
Islands  are  ceded  to  the  United  States.  In  fulfilment  offJie  rights 
of  sovereignty  thus  acqnired,"  etc.  The  treaty  was  not  ratified  by 
the  treaty-making  power  of  the  United  States  until  the  following 
February,  and  did  not  go  into  effect  until  April  11,  1899. 

200 


HOW  TERRITORY  MAY  BE  ACQUIRED 

not  simply  that  it  came  under  American  sovereignty 
by  Joint  Resolution  but  that  it  became  at  once  one  of 
the  States  of  the  Union,  and  thus  never  had  the  tran- 
sitional territorial  status.  This  fact,  indeed,  gave 
additional  constitutional  support  to  the  action  of 
Congress  in  the  matter,  for  to  that  body  is  given  by 
the  Constitution  the  right  to  admit  new  States  into 
the  Union,  and  therefore  its  admission  of  Texas  to 
fellowship  with  the  other  American  commonwealths 
might  easily  be  construed  as  a  legitimate  exercise  of 
that  power. 

The  acquisition  of  the  Hawaiian  Islands  was  an- 
other instance  of  the  extension  of  the  United  States 
sovereignty  by  a  simple  Joint  Resolution  of  the  two 
branches  of  Congress.  In  this  case,  however,  the 
action  taken  was  rendered  more  difficult  of  constitu- 
tional justification  by  reason  of  the  fact  that  the 
islands  were  not,  as  was  Texas,  admitted  as  a  State  or 
States  of  the  Union,  but  were  simply  annexed  as  a  ter- 
ritory. The  admission  of  Texas  to  the  Union  was  not, 
therefore,  a  good  precedent,  any  more  than  was  the 
annexation  of  the  Guano  Islands  and  Midway  Island, 
for  the  reason  that  those  lands  were  unoccupied  and 
unclaimed  by  any  other  State  and  were  taken  posses- 
sion of  by  the  United  States  in  pursuance  of  the 
general  right  enjoyed  by  a  sovereign  State  under  the 
law  of  nations  to  acquire  territory  by  discovery  and 
occupation. 

The  question  as  to  the  constitutionality  of  the  an- 
nexation of  Hawaii  has,  however,  never  been  raised  in 
the  courts,  but  should  it  be  done,  the  Supreme  Court 
will  almost  surely  decline  to  pass  upon  it,  that  tribunal 

201 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


having  declared,  as  will  be  remembered,  that  "Who 
is  the  sovereign,  de  jure  or  de  facto,  of  a  territory  is 
not  a  judicial  but  a  political  question,  the  determina- 
tion of  which  by  the  legislative  and  executive  depart- 
ments of  any  government  conclusively  binds  the 
judges,  as  well  as  all  other  officers,  citizens,  and  sub- 
jects of  that  government"  (Jones  v.  United  States, 
137U.  S.,  202).i 

Purposes   for  which  Territory  may  be  Acquired.      At 

the  time  that  the  Philippine  Islands  were  acquired 
by  the  United  States,  and  for  several  years  there- 
after, the  argument  was  made  by  some  who  were  op- 
posed to  this  "imperialistic"  policy  that  the  United 
States  had  not  the  constitutional  power  to  acquire 
territory  except  for  the  purpose  of  obtaining  the  ma- 
terial from  which  new  member  States  of  the  Union 
might  be  created  within  a  reasonable  period  of  time; 
and  that,  therefore,  an  unconstitutional  act  was  com- 
mitted by  annexing  islands  which,  both  by  reason  of 
their  distance  from  America  and  the  character  of  their 
populations  plainly  could  not  be  expected  to  become 
qualified  for  statehood  within  any  period  of  years  the 
length  of  which  could  be  even  approximated.  Senator 
Hoar  declared  in  the  Senate  that  he  had  been  unable 

1  Upon  the  constitutional  questions  involved  in  the  annexation 
of  Hawaii  see  Senate  Report,  No.  681,  55th  Cong.,  2nd  Session, 
and  Speech  of  Hon.  S.  E.  Mallory  in  the  U.  S.  Senate,  July  1, 
1898.  It  is  barely  possible  that  should  the  Supreme  Court  con- 
sent to  pass  upon  the  point,  it  would  sustain  the  action  of  Con- 
gress as  legislation  "necessary  and  proper"  for  "defence,"  for 
"  regulation  of  commerce,"  or  for  carrying  into  effect  some  others 
of  the  duties  expressly  laid  upon  Congress  by  the  Constitution. 

202 


HOW  TERRITORY  MAY  BE  ACQUIRED 

to  find  a  single  reputable  authority  more  than  twelve 
months  old  for  the  opposite  doctrine.  Upon  the  con- 
trary, he  and  others  of  the  same  view  were  able  to  cite 
numerous  declarations  not  only  of  public  men,  but  of 
Congress  and  even  of  the  courts  during  past  years  to 
the  effect  that  American  constitutional  law  did  not 
contemplate  the  holding  by  the  United  States  for  an 
indefinite  length  of  time  of  dependent  territories  to 
which  statehood  could  not  be  granted.  Of  the  fore- 
going claim  this  much  must  be  admitted ;  namely,  that 
bej^ond  all  probable  doubt  those  who  framed  and 
adopted  the  federal  Constitution  did  not  anticipate, 
and  therefore  cannot  be  said  deliberately  to  have  pro- 
vided for,  the  time  when  the  United  States  should 
extend  its  sovereignty  over  territories  not  intended 
ultimately  for  statehood.  Nor  can  it  be  said  that  a 
different  view  was  held  upon  this  point  by  practically 
any  one  until  comparatively  recent  times.  But  in  ad- 
mitting this,  the  conclusion  that  the  annexation  of 
such  territory  was  an  unconstitutional  act  does  not 
follow.  For  in  the  first  place,  as  has  been  repeatedly 
declared  by  the  Supreme  Court,  it  is  not  enough  to 
say  that  a  particular  case  was  not  in  the  minds  of 
those  who  framed  and  adopted  the  Constitution  in 
order  to  hold  an  act  unconstitutional.  One  must  go 
further  and  show  that  had  the  particular  case  been 
suggested  to  those  framers  and  adopters  of  the  Con- 
stitution, they  would  so  have  modified  its  language  as 
to  exclude  it.  Thus,  as  the  Court  declared  in  the  fa- 
mous Dartmouth  College  Case  :  "The  case  being  within 
the  words  of  the  rule,  must  be  within  its  operations 
likewise,  unless  there  be  something  within  its  literal 

203 


THE   AMERICAN    CONSTITUTIONAL   SYSTEM 

construction  so  obviously  absurd  or  mischievous,  or 
repugnant  to  the  general  spirit  of  that  instrument 
as  to  justify  those  who  expounded  the  Constitution  in 
making  it  an  exception"  (Dartmouth  College  v. 
Woodward,  4  Wh.,  518).  In  the  second  place,  even 
were  this  principle  of  constitutional  construction  not 
sufficiently  broad  to  uphold  the  federal  power  in 
question,  there  would  be  applicable  two  principles, 
each  of  which  would  prevent  the  Supreme  Court  from 
passing  upon  this  point.  The  first  of  these  principles 
is  the  one  recently  mentioned  that  the  question  of 
de  facto  and  de  jure  sovereignty  is  one  regarding 
which  the  courts  hold  themselves  bound  by  the  deter- 
mination of  the  executive  arid  legislative  branches  of 
government ;  the  second  is  that  the  motive  of  an  act, 
except  for  the  purpose  of  solving  an  ambiguity  in  its 
application,  is  not  a  proper  subject  for  judicial  exami- 
nation, and  that  therefore,  in  the  case  of  an  annexation 
of  territory,  it  would  not  be  proper  for  the  court  to 
seek  to  learn  whether  or  not  ultimate  statehood  was 
intended  to  be  granted  the  lands  and  peoples  obtained. 
Indeed,  as  we  shall  see,  as  regards  the  contiguous  con- 
tinental territories  of  the  United  States,  it  has  been 
uniformly  held  that  the  grant  to  them  of  statehood 
lies  wholly  within  the  discretion  of  Congress,  and  that 
no  legal  means  exist  for  compelling  action  should  that 
body  arbitrarily  refuse  for  an  indefinite  length  of 
time  to  grant  this  privilege  to  a  deserving  territory. 


204 


CHAPTER  XIII 

THE   CONSTITUTIONAL  STATUS   OF   TERRITORIES:    THE   PO- 
LITICAL  RIGHTS   OF   THEIR   INHABITANTS 

The  topic  to  which  we  have  given  the  title  "The 
Constitutional  Status  of  the  Territories"  is  divisible 
into  two  parts,  the  one  relating  to  the  political  or 
governmental  rights  of  their  inhabitants ;  the  other  to 
their  private  or  civil  rights.  These  we  shall  consider 
separately.  First,  then,  as  to  the  powers  of  the  Fed- 
eral Government  over  the  government  of  such  terri- 
tories as  are  subject  to  its  sovereignty  but  are  not 
embraced  within  the  boundaries  of  any  of  the  States. 
This  federal  authority  has  been  derived  from  two 
sources:  (1)  The  express  power  given  to  Congress 
"to  dispose  of  and  make  all  needful  rules  and  regula- 
tions respecting  the  territory  or  other  property  be- 
longing to  the  United  States,"  and  (2)  The  implied 
power  to  govern  derived  from  the  right  to  acquire 
territory.  Both  of  these  sources  have  been  recognized 
by  the  Supreme  Court.  Thus  in  Sere  v.  Pitot  ( 6  Cr., 
332),  decided  in  1810,  Marshall,  after  referring  to  the 
former  source  of  authority,  said :  ' '  Accordingly  we 
find  Congress  possessing  and  exercising  absolute  and 
undisputed  power  of  governing  and  legislating  for 
the  territory  of  Orleans."     So  also  in  Clinton  v.  En- 

205 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

glebrecht  (13  Wall.,  434)  the  same  deduction  was 
drawn  from  this  same  source.  It  was  early  recognized, 
however,  that  this  clause  might  possibly  have  been  in- 
tended merely  to  give  to  Congress  a  necessary  control 
of  its  public  lands  as  property,  and  indeed,  its  phrase- 
ology is  scarcely  such  as  one  would  think  the  framers 
of  the  Constitution  would  naturally  have  employed 
in  making  a  grant  of  general  governmental  powers. 
Thus  in  the  same  case  (Sere  v.  Pitot)  in  which  the 
express  power  "to  make  all  needful  rules  and  regula- 
tions ' '  is  relied  upon,  the  doctrine  is  also  asserted  that 
"the  power  of  governing  and  of  legislating  for  a 
territory  is  the  inevitable  consequence  of  the  right  to 
acquire  and  to  hold  territory." 

In  American  Insurance  Co.  v.  Canter  (1  Pet.,  511) 
the  Supreme  Court  declared  that :  ' '  Whatever  may  be 
the  source  whence  the  power  [to  govern  territories]  is 
derived,  the  possession  of  it  is  unquestioned;  "  and  in 
Murphy  v.  Ramsay  (114  U.  S.,  15)  the  question  was 
declared  "no  longer  open  to  controversy"— that  it 
had  "passed  beyond  the  stage  of  controversy  into 
final  judgment."^  In  Mormon  Church  v.  United 
States  (136  U.  S.,  1),  Justice  Bradley,  speaking  for 
the  Court,  said:  "Having  rightfully  acquired  said 
territories,  the  United  States  government  was  the  only 
one  which  could  impose  laws  upon  them,  and  its  sover- 
eignty over  them  was  complete.     No   State   of  the 

1  The  power  of  the  Federal  Government  to  govern  territories 
has  also  been  deduced  from  the  fact  that  territories  being  sub- 
ject to  the  sovereignty  of  the  United  States  and  admittedly  not 
subject  to  government  by  any  of  the  States,  their  control  neces- 
sarily falls  to  the  federal  power. 

206 


THE   GOVERNMENT   OF   TERRITORIES 

Union  had  any  such  right  of  sovereignty  over  them; 
no  other  country  or  government  had  any  such  right. 
These  propositions  are  so  elementary  and  so  necessa- 
rily follow  from  the  condition  of  things  arising  upon 
the  acquisition  of  new  territory,  that  they  need  no  ar- 
gument to  support  them."  And  in  De  Lima  v.  Bid- 
well  (182  U.  S.,  1),  [one  of  the  Insular  Cases],  the 
Court  said:  "It  [the  power  to  govern]  is  an  authority 
which  arises,  not  necessarily  from  the  territorial  clause 
of  the  Constitution  but  from  the  necessities  of  the 
case,  and  from  the  inability  of  the  States  to  act  upon 
the  subject." 

Not  only  has  there  never  been  any  serious  dispute 
as  to  the  power  of  the  National  Government  to  govern 
all  territories  subject  to  its  sovereignty  and  not  in- 
cluded within  the  boundaries  of  any  of  the  States,  but, 
with  equally  unanimous  assent,  this  power  has  been 
held  to  be  practically  absolute.  That  is  to  say,  the 
form  of  government  which  shall  be  erected  over  these 
territories,  and  the  extent  to  which  their  inhabitants 
shall  be  permitted  to  participate  in  this  government, 
is  recognized  to  rest  wholly  within  the  discretion  of 
the  President  and  the  federal  law-making  power. 
In  Mormon  Church  v.  United  States  (136  U.  S.,  1)  the 
Supreme  Court  said:  "The  power  of  Congress  over 
the  territories  is  general  and  plenary."  In  Na- 
tional Bank  v.  County  of  Yankton  (101  U.  S.,  129), 
Chief  Justice  Waite,  speaking  for  the  Court,  asserted : 
"Congress  may  not  only  abrogate  laws  of  the  terri- 
torial legislatures,  but  it  may  itself  legislate  directly 
for  the  local  government.  It  may  make  a  void  act  of 
the  territorial  legislature  valid,  and  a  valid  act  void. 

207 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

In  other  words,  it  has  full  and  complete  legislative 
authority  over  the  people  of  the  territories  and  all 
the  departments  of  the  territorial   governments.     It 
may  do  for  the  territories  what  the  people,  under  the 
Constitution  of  the  United  States,  may  do  for  the 
States."     Again,  in  Murphy  v.  Ramsay   (114  U.  S., 
15)   the  Court  declared:  "The  people  of  the  United 
States,  as  sovereign  owners  of  the  National  Territo- 
ries, have  supreme  power  over  them  and  their  inhabi- 
tants.   In  the  exercise  of  this  sovereign  dominion,  they 
are   represented   by   the    government    of   the   United 
States,  to  whom  all  the  powers  of  government  over 
that  subject  have  been  delegated,  subject  only  to  such 
restrictions  as  are  expressed  in  the  Constitution,  or 
are  necessarily  implied  in  its  terms,  or  in  the  purposes 
and  objects  of  the  power  itself;  for  it  may  well  be 
admitted  in  respect  to  this,  as  to  every  power  of  so- 
ciety over  its  members,  that  it  is  not  absolute  and 
unlimited.    But  in  ordaining  government  for  the  ter- 
ritories,  and  the  people  who   inhabit   them,   all   the 
discretion  which  belongs  to  legislative  power  is  vested 
in  Congress ;  and  that  extends,  beyond  all  controversy, 
to  determining  by  law,  from  time  to  time,  the  form  of 
the  local  government  in  a  particular  Territory,  and 
the  qualification  of  those  who  shall  administer  it.     It 
rests  with  Congress  to  say  whether,  in  a  given  case, 
any  of  the  people  resident  in  the  Territory,  shall  par- 
ticipate in  the  election  of  its  officers  or  the  making  of 
its  laws;  and  it  may,  therefore,  take  from  them  any 
right  of  suffrage  it  may  previously  have  conferred,  or 
at  any  time  modify  or  abridge  it,  as  it  may  deem 
expedient.      The   right   of   local   self-government,    as 

208 


THE  GOVERNMENT   OF   TERRITORIES 

known  to  our  system  as  a  constitutional  franchise,  be- 
longs, under  the  Constitution,  to  the  States  and  to  the 
people,  thereof,  by  whom  that  Constitution  was  or- 
dained, and  to  whom  by  its  terms  all  power  not  con- 
ferred by  it  upon  the  government  of  the  United 
States  was  expressly  reserved." 

Finally,  in  1850,  in  a  ease  involving  the  effect  of  a 
territorial  statute  of  Florida,  the  Court  said:  "They 
are  legislative  governments,  and  their  courts  legisla- 
tive courts.  Congress,  in  the  exercise  of  its  powers  in 
the  organization  and-  government  of  the  territories, 
combining  the  powers  of  both  the  federal  and  state 
authorities.  There  is  but  one  system  of  government 
or  of  laws  operating  within  their  limits,  as  neither  is 
subject  to  the  constitutional  provisions  in  respect  to 
state  and  federal  jurisdiction.  They  are  not  organ- 
ized under  the  Constitution,  nor  subject  to  its  com- 
plex distribution  of  the  powers  of  government,  as  the 
organic  law ;  but  are  the  creations,  exclusively,  of  the 
legislative  department,  and  subject  to  its  supervision 
and  control.  Whether  or  not  there  are  provisions  in 
that  instrument  which  extend  to  and  act  upon  these 
territorial  governments,  it  is  not  now  material  to  ex- 
amine" (Benner  v.  Porter,  9  How.,  235). 

This  absolute  power  of  Congress  to  determine  the 
political  or  governmental  rights  in  the  territories  con- 
stitutionally attaches  from  the  moment  that  they 
become  subject  to  the  sovereignty  of  the  United 
States.  Until  Congress  exercises  this  right,  however, 
and  provides  them  with  governments  and  laws,  they 
remain  under  the  control  of  the  federal  executive. 
This  duty  devolves  upon  the  President  as  a  result 

14  209 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

from  his  general  obligation  to  see  that  the  authority 
and  peace  of  the  United  States  are  everywhere  main- 
tained throughout  its  territorial  limits.  Thus  after 
the  treaty  of  peace  with  Spain  in  1899,  Porto  Rico  re- 
mained under  the  control  of  the  President  until  by 
the  act  of  April  12,  1900,  known  as  the  "Foraker 
Act,"  Congress  provided  a  government  for  that  is- 
land. So  also  it  was  by  an  exercise  of  the  same 
authority  that  the  President,  after  the  same  treaty  of 
cession,  appointed  commissions  for  the  government  of 
the  Philippine  Islands. 

On  March  2,  1901,  Congress  enacted^  that  "All 
military,  civil,  and  judicial  powers  necessary  to  gov- 
ern the  Philippine  Islands  .  .  .  shall,  until  other- 
wise provided  by  Congress,  be  vested  in  such  person 
or  persons  and  shall  be  exercised  in  such  manner  as 
the  President  of  the  United  States  shall  direct  for  the 
establishment  of  civil  government  and  for  the  main- 
taining and  protecting  the  inhabitants  of  said  islands 
in  the  free  enjoyment  of  their  liberty,  property,  and 
religion."  This  act  changed  the  basis  of  the  Philip- 
pine government  from  a  presidential  to  a  congres- 
sional one,  but  did  not  change  its  form,  the  President 
being  given  by  Congress  practically  the  same  powers 
that  before  that  time  he  had  exercised  by  virtue  of  his 
position  as  Chief  Executive.  By  the  act  of  July  1, 
1902,  entitled  "an  act  temporarily  to  provide  for  the 
administration  of  the  affairs  of  civil  government  in 
the  Philippine  Islands,  and  for  other  purposes,"  Con- 

1  This  was  the  so-called  Spooner  amendment  to  the  act  making 
appropriation  for  the  support  of  the  army  for  the  fiscal  year 
ending  June  30,  1902. 

210 


THE  GOVERNMENT   OF   TERRITORIES 

gress  not  only  approved  and  ratified  the  previous 
acts  of  the  Philippine  Commission  for  the  control  of 
the  islands,  and  continued  their  government  in  the 
Philippine  Commission,  but  went  on  to  define  the 
general  lines  of  action  that  body  should  take,  espe- 
cially with  regard  to  the  introduction  of  local  self- 
government  as  fast  as  circumstances  should  warrant. 

The  constitutional  power  of  the  President  to  assume 
and  exercise  the  absolute  control  of  territories  until 
Congress  has  made  statutory  provision  for  their  gov- 
ernment, has  been  repeatedly  affirmed  by  the  Supreme 
Court.  In  Cross  v.  Harrison  (16  How.,  193),  speak- 
ing of  the  government  that  the  executive  had  estab- 
lished in  California,  that  Court  said:  "It  had  its 
origin  in  the  lawful  exercise  of  a  belligerent  right 
over  a  conquered  territory.  ...  It  did  not  cease  as 
a  matter  of  course,  or  as  a  necessary  consequence  of 
the  restoration  of  peace.  The  President  might  have 
dissolved  it  by  withdrawing  the  army  and  navy  offi- 
cers who  administered  it,  but  that  was  not  done.  The 
right  inference  from  the  inaction  of  both  is  that  it  was 
meant  to  be  continued  until  it  had  been  legislatively 
changed. ' ' 

Acting  in  pursuance  of  its  powers,  Congress  has, 
from  time  to  time,  as  new  territories  have  been  ac- 
quired, established  for  them  by  statutes  territorial 
governments.  The  first  of  these  statutes  was  that  of 
August  7,  1789,  passed  at  the  first  session  of  the  First 
Congress  providing  for  the  government  of  the  terri- 
tory northwest  of  the  Ohio  River.  The  latest  of  these 
statutes  are  those  establishing  civil  rule  in  Porto  Rico 
and  the  Philippines. 

211 


THE   AMERICAN    CONSTITUTIONAL   SYSTEM 


Generally  speaking,  it  may  be  said  that  the  govern- 
ments thus  created  have  been  and  are  of  four 
kinds. 

First,  there  is  the  class  of  so-called  Unorganized 
Territories,  at  present  consisting  of  Indian  Territory 
and  Alaska.  These  have  no  local  self-government  but 
are  governed  by  officials  nominated  by  the  President 
and  confirmed  by  the  Senate,  and  have  for  their  laws 
such  as  have  been  given  them  by  Congress.  To  this 
class  of  autocratically  governed  territories  should  also 
possibly  be  added  the  Samoan,  Wake,  Midway,  and 
Guano  Islands  which  are  ruled  by  officers  of  the  mili- 
tary force  of  the  United  States. 

Second,  there  is  the  whole  class  of  Organized  Ter- 
ritories that  has  included  all  of  the  continental 
territories  of  the  United  States  except  Indian  Ter- 
ritory and  Alaska,  and  at  present  embraces  New 
Mexico,  Arizona,  Oklahoma,  and  Hawaii.  The  chief 
executive  and  judicial  officers  of  these  governments 
are  nominated  by  the  President  and  confirmed  by  the 
Senate  and  hold  office  for  four  years.  Their  legisla- 
tures consist  of  two  Houses,  each  elected  by  those  in- 
habitants of  the  territories  who  had  been  given  the 
sufiCrage  by  federal  law.  The  law-making  power  of 
these  bodies  is  extended  by  Congress  "to  all  rightful 
subjects  of  legislation  not  inconsistent  with  the  Con- 
stitution and  laws  of  the  United  States."  The  laws 
passed  in  pursuance  of  this  legislative  authority  are, 
of  course,  not  only  subject  to  scrutiny  in  the  courts  as 
to  their  constitutionality,  but  may  be  amended  or 
annulled  at  any  time  by  an  act  of  Congress. 

Third,  there  is  the  government  of  the  island  Porto 
212 


THE   GOVERNMENT   OF   TERRITORIES 

Rico  which  stands  in  a  class  by  itself.  According  to 
the  Foraker  Act  of  April  12,  1900,  how  (1904)  in 
force,  its  governor  and  chief  executive  officials  and 
judges  are  nominated  by  the  President  and  confirmed 
by  the  Senate,  and  its  legislature  is  composed  of  two 
houses,  the  upper  of  which  consists  of  the  six  chief 
executive  officials  and  five  native  Porto  Ricans,  and 
the  lower  of  thirty-five  members  elected  by  popular 
vote. 

Fourthly,  and  finally,  there  is  the  government  of  the 
Philippine  Islands  by  means  of  a  Commission  ap- 
pointed by  the  President  and  confirmed  by  the  Senate 
under  authority  granted  by  Congress. 

Regarding  all  of  these  territorial  governments  it  is 
to  be  said  that  they  are  "congressional"  rather  than 
"federal"  governments.  That  is  to  say,  they  do  not 
constitute  parts  of  the  General  Government,  in  sensu 
strictiorc,  but  exist  only  as  agents  of  Congress.  There- 
fore, it  has  been  declared,  for  instance,  that  the  ap- 
pointment of  their  judges  for  terms  of  but  four  years 
does  not  violate  the  provision  of  the  national  Consti- 
tution that  all  federal  judges  shall  hold  office  for  life. 
This  was  so  decided  in  the  case  of  American  Insurance 
Co.  V.  Canter  (1  Pet.,  511),  in  which  the  Supreme 
Court  sqid  of  the  judicial  tribunals  that  had  been  es- 
tablished in  Florida  by  Congress :  ' '  These  courts  .  .  . 
are  not  constitutional  courts  in  which  the  judicial 
power  conferred  by  the  Constitution  on  the  General 
Government  can  be  deposited.  They  are  incapable  of 
receiving  it.  They  are  legislative  courts,  created  in 
virtue  of  the  general  right  of  sovereignty  which  exists 
in  the  government,  or  in  virtue  of  that  clause  which 

213 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

enables  Congress  to  make  all  needful  rules  and  regu- 
lations respecting  the  territory  belonging  to  the  United 
States.  The  jurisdiction  with  which  they  are  invested 
is  not  a  part  of  that  judicial  power  which  is  defined 
in  the  third  article  of  the  Constitution,  but  was  con- 
ferred by  Congress  in  execution  of  those  general  pow- 
ers which  that  body  possesses  over  the  territories  of 
the  United  States." 


214 


CHAPTER  XIV 

THE      CONSTITUTIONAL      STATUS      OF      TERRITORIES:    THE 
CIVIL    RIGHTS    OF    THEIR    INHABITANTS 

The  Constitution  of  the  United  States  contains  a 
number  of  express  limitations  upon  the  federal  legis- 
lative power.  In  addition  to  those  contained  in  the 
first  ten  amendments  relative  to  freedom  of  religion, 
speech,  and  press,  the  quartering  of  troops,  the  right 
of  the  people  to  assemble,  to  petition,  to  keep  and  bear 
arms,  to  be  secure  against  unreasonable  searches  and 
seizures,  to  presentment  or  indictment  by  jury,  to 
speedy  trial,  to  juries  in  civil  suits,  to  immunity  from 
excessive  bail  and  fines  and  cruel  and  unusual  punish- 
ments, etc.,  it  is  elsewhere  provided  in  the  Constitution 
that  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States,  that  the  writ  of  habeas 
corpus  shall  not  be  suspended,  except  under  certain 
specified  circumstances,  that  no  bill  of  attainder  or 
ex  post  facfo  law  shall  be  passed,  no  capitation  or  other 
direct  tax  laid  except  in  proportion  to  population,  no 
duty  laid  upon  goods  exported  from  a  State,  no  com- 
mercial preferences  given  to  the  ports  of  one  State 
over  those  of  another,  no  money  drawn  from  the 
treasury  but  in  consequence  of  an  appropriation  made 
by  law,  no  title  of  nobility  granted,  etc.     The  Thir- 

215 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


teenth  Amendment  also  declares  that  "  neither  sla- 
very nor  involuntary  servitude,  except  as  punishment 
for  crime  whereof  the  party  shall  have  been  duly  con- 
victed, shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction." 

When  legislating  for  the  States  or  their  inhabitants 
these  limitations  have  of  course  to  be  observed.  The 
question  whether  the  same  is  true  when  Congress  is 
legislating  for  the  territories  and  their  populations 
has,  however,  been  recently  subjected  to  a  most  severe 
debate,  and  even  now  only  a  partial  settlement  of  it 
by  the  Supreme  Court  has  been  obtained.  The  answer 
to  this  question  has  involved  a  reexamination  of  the 
fundamental  nature  of  the  federal  Constitution  and  of 
the  purposes  for  which  it  was  framed  and  adopted. 
By  a  series  of  judgments  rendered  in  the  recently  de- 
cided ' '  Insular  Cases, ' '  the  Supreme  Court  has  deter- 
mined the  following  points. 

In  the  case  of  De  Lima  v.  Bidwell  (182  U.  S.,  1), 
decided  May  27,  1901,  a  majority  of  the  justices— five 
out  of  nine— held  that  immediately  upon  the  ratifica- 
tion of  the  treaty  of  peace  with  Spain  in  1898,  ceding 
Porto  Rico  to  the  United  States,  that  island,  being  al- 
ready in  the  possession  of  the  United  States,  ceased  to 
be  foreign  territory  and  came  under  the  sovereignty 
of  the  United  States,  with  a  result  that  the  existing 
tariff  act,  which  by  its  terms  applied  to  imports  from 
"foreign  countries,"  no  longer  was  applicable  to 
goods  coming  to  the  United  States  from  Porto  Rico. 
In  a  later  case  the  same  doctrine  was  applied  to  the 
Philippine  Islands,  the  point  being  overruled  that,  be- 
cause of  the  resistance  at  the  time  being  offered  to 

216 


STATUS   OF   TERRITORIES 


American  occupation  by  the  natives,  the  United  States 
was  not  in  actual  possession  of  them.^ 

In  both  cases  four  justices  dissented,  not,  however, 
upon  the  ground  that  these  islands  had  not  come  under 
the  sovereignty  of  the  United  States,  but  because,  as 
they  thought,  the  necessary  act  of  Congress  subjecting 
them  to  the  revenue  laws  of  the  United  States  had  not 
been  passed.  The  doctrine  of  the  minority,  in  other 
words,  was,  that  the  mere  act  of  cession,  ratified  by 
the  treaty-making  power,  did  not  of  itself  extend  over 
the  ceded  territory  the  government  and  laws  of  the 
United  States,  but  that  to  effectuate  this  there  must  be 
either  an  express  provision  in  the  treaty  itself  to  that 
effect  or  a  subsequent  act  of  Congress. 

In  the  case  of  Downes  v.  Bidwell  (182  U.  S.,  244), 
decided  May  27,  1901,  five  of  the  nine  justices  of  the 
Supreme  Court  concurred  in  holding  that,  though  by 
the  treaty  of  cession  the  island  of  Porto  Rico  came 
under  the  sovereignty  of  the  United  States,  and,  when 
viewed  from  the  standpoint  of  all  other  nations  be- 
came a  part  of  the  United  States,  yet,  when  looked  at 
from  the  viewpoint  of  its  own  public  law,  it  did  not 
become  a  part  of  the  ' '  United  States ' '  as  that  term  is 
used  in  the  Constitution. 

In  order  to  arrive  at  this  conclusion  one  of  these 
five  justices— Brown— reasoned  as  follows: 

After  calling  attention  to  the  fact  that,  as  decided 
in  the  case  of  De  Lima  v.  Bidwell,  by  cession  by  treaty 
with  a  foreign  power,  a  territory,  already  in  the  actual 
possession  of  the  United  States,  at  once  ceased  to  be 

1  Fourteen  Diamond  Eings  v.  United  States,  183  U.  S.,  176, 
decided  December  2,  1901. 

217 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


foreign  and  became  domestic  territory,  he  pointed 
out  that  the  cases  under  consideration  involved  the 
further  and  more  important  question  whether  upon 
becoming  domestic  territory  the  provisions  of  the 
federal  Constitution  were  extended  of  their  own  force 
over  annexed  territories.  The  Constitution  not 
itself  directly  giving  an  answer  to  this,  the  so- 
lution, he  said,  would  have  to  be  found  in  the  nature 
of  the  government  created  by  that  instrument.  Ac- 
cording to  this  justice's  view,  this  instrument  was 
created,  if  not  hij  the  States,  at  least  exclusively  for 
the  States,  and  not  for  the  territories  or  any  other 
extra-State  lands  that  might  belong  to  the  United 
States.  Thus,  to  quote  his  own  words,  "It  can  no- 
where be  inferred  that  the  territories  were  considered 
a  part  of  the  United  States.  The  Constitution  was 
created  by  the  people  of  the  United  States,  as  a  union 
of  States;  and  even  the  provision  relied  upon  here, 
that  all  duties,  imposts,  and  excises  should  be  uni- 
form 'throughout  the  United  States'  is  explained  by 
the  subsequent  provisions  of  the  Constitution,  that 
'no  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State,'  and  'no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another;  nor  shall  vessels  bound 
to  or  from  one  State  be  obliged  to  enter,  clear,  or  pay 
duties  in  another.'  In  short,  the  Constitution  deals 
with  States,  their  people  and  their  representatives. 
The  Thirteenth  Amendment  to  the  Constitution  pro- 
hibiting slavery  and  involuntary  servitude  'within 
the  United  States,  or  in  any  place  subject  to  their 
jurisdiction'  is  also  significant  as  showing  that  there 

218 


STATUS  OF   TERRITORIES 


may  be  places  within  the  jurisdiction  of  the  United 
States  that  are  no  part  of  the  Union.  .  .  .  Upon  the 
other  hand,  the  Fourteenth  Amendment,  upon  the 
subject  of  citizenship,  declares  only  that  'all  persons 
born  or  naturalized  in  the  United  States,  and  subject 
to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States,  and  of  the  State  wherein  they  reside.'  Here 
there  is  a  limitation  to  persons  born  or  naturalized  in 
the  United  States,  which  is  not  extended  to  persons 
born  in  any  place  'subject  to  their  jurisdiction.'  " 

To  restate,  then,  the  position  of  Justice  Brown,  it 
would  appear  that,  according  to  his  view,  the  "United 
States,"  when  looked  at  from  the  domestic  or  consti- 
tutional viewpoint,  includes  only  the  individual  States 
such  as  Virginia,  New  York,  Texas,  etc.,  in  Union.  The 
Federal  District,  the  territories,  and,  in  fact,  all  areas 
not  within  the  boundaries  of  some  one  of  these  States, 
though  under  the  national  sovereignty,  are  not  a  part 
of  the  Union.  Looked  at,  however,  from  the  inter- 
national viewpoint,  the  term  United  States  has,  as 
Justice  Brown  later  observes,  "a  broader  meaning 
than  when  used  in  the  Constitution,  and  includes  all 
territories  subject  to  the  jurisdiction  of  the  Federal 
Government,  wherever  located.  In  its  treaties  and 
conventions  with  foreign  nations  this  government  is 
a  unit.  This  is  so,  not  because  the  territories  comprise 
a  part  of  the  government  established  by  the  people  of 
the  States  in  their  Constitution,  but  because  the  Fed- 
eral Government  is  the  only  authorized  organ  of  the 
territories,  as  well  as  of  the  States,  in  their  foreign 
relations. ' '  ^ 

1  Citing  De  Geofroy  v.  Riggs,  133  U.  S.,  258. 

219 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Not  being  considered  a  part  of  the  political  unit 
created  and  organized  by  the  federal  Constitution,  it 
would  seem  logically  to  follow  that  the  non-State 
areas,  or  rather  their  populations,  would  not  be  en- 
titled to  any  of  the  privileges  or  immunities  defined  in 
that  instrument.  But  Justice  Brown  does  not  draw 
this  conclusion.  Speaking  of  the  limitations  laid  upon 
the  powers  of  Congress  by  the  Constitution,  he  says: 

"There  is  a  clear  distinction  between  such  prohibi- 
tions as  go  to  the  very  root  of  the  power  of  Congress 
to  act  at  all,  irrespective  of  time  and  place,  and  such 
as  are  operative  only  'throughout  the  United  States' 
or  among  the  several  States.  Thus,  when  the  Consti- 
tution declares  that  'no  bill  of  attainder  or  ex  post 
facto  law  shall  be  passed,'  and  that  'no  title  of  nobility 
shall  be  granted  by  the  United  States'  it  goes  to  the 
competency  of  Congress  to  pass  a  bill  of  that  descrip- 
tion. Perhaps  the  same  remark  may  be  applied  to  the 
First  Amendment  that  'Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof;  or  abridging  the  freedom  of 
speech;  or  of  the  press;  or  the  right  of  the  people  to 
peacefully  assemble  and  to  petition  the  government 
for  a  redress  of  grievances.'  We  do  not  wish,  how- 
ever, to  be  understood  as  expressing  an  opinion  how 
far  the  bill  of  rights  contained  in  the  first  eight 
Amendments  is  of  general  and  how  far  of  local  appli- 
cation. Upon  the  other  hand,  when  the  Constitution 
declares  that  all  duties  shall  be  uniform  'throughout 
the  United  States'  it  becomes  necessary  to  inquire 
whether  there  be  any  territory  over  which  Congress 
has  jurisdiction  which  is  not  a  part  of  the  'United 

220 


STATUS   OF   TERRITORIES 


States,'  by  which  term  we  understand  the  States 
whose  people  united  to  form  the  Constitution,  and 
such  as  have  since  been  admitted  to  the  Union  upon  an 
equality  with  them."  And  later  on  he  says:  "We 
suggest,  Avithout  intending  to  decide,  that  there  may 
be  a  distinction  between  certain  natural  rights  en- 
forced in  the  Constitution  by  prohibitions  against 
interference  with  them,  and  what  may  be  termed  ar- 
tificial or  remedial  rights  which  are  peculiar  to  our 
OAvn  system  of  jurisprudence.  Of  the  former  class  are 
the  rights  to  one's  own  religious  opinions  and  to  a 
public  expression  of  them,  or,  as  sometimes  said,  to 
worship  God  according  to  the  dictates  of  one's  own 
conscience;  the  right  to  personal  liberty  and  indi- 
vidual property;  to  freedom  of  speech  and  of  the 
press;  to  free  access  to  courts  of  justice,  to  due  pro- 
cess of  law,  and  to  an  equal  protection  of  the  laws; 
to  immunities  from  unreasonable  searches  and  seizures, 
as  well  as  cruel  and  unusual  punishments ;  and  to  such 
other  immunities  as  are  indispensable  to  a  free  gov- 
ernment. Of  the  latter  class  are  the  rights  to  citizen- 
ship, suffrage  (Minor  ik  Ilappersett,  21  Wall.,  162), 
and  to  the  particular  methods  of  procedure  pointed 
out  in  the  Constitution,  which  are  peculiar  to  Anglo- 
Saxon  jurisprudence,  and  some  of  which  have  already 
been  held  by  the  States  to  be  unnecessary  to  the  proper 
protection  of  individuals. 

"Whatever  may  be  finally  decided  by  the  American 
people  as  to  the  status  of  these  islands  and  their  in- 
habitants,—whether  they  shall  be  introduced  into  the 
sisterhood  of  States  or  be  permitted  to  form  indepen- 
dent  governments,  —  it    does   not    follow   that    in   the 

221 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

meantime,  awaiting  that  decision,  the  people  are  in 
the  matter  of  personal  rights  unprotected  by  the  pro- 
visions of  our  Constitution  and  subject  to  the  merely- 
arbitrary  control  of  Congress.  Even  if  regarded  as 
aliens,  they  are  entitled  under  the  principles  of  the 
Constitution,  to  be  protected  in  life,  liberty,  and 
property.  This  has  been  frequently  held  by  this 
Court  in  respect  to  the  Chinese,  even  when  aliens,  not 
possessed  of  the  political  rights  of  citizens  of  the 
United  States  [citing  cases].  We  do  not  desire,  how- 
ever, to  anticipate  the  difficulties  which  would  natu- 
rally arise  in  this  connection,  but  merely  to  disclaim 
any  intention  to  hold  that  the  inhabitants  of  these 
territories  are  subject  to  an  unrestrained  power  on  the 
part  of  Congress  to  deal  with  them  upon  the  theory 
that  they  have  no  rights  which  it  is  bound  to  protect." 
According  to  Justice  Brown,  then,  there  are  some 
provisions  of  the  Constitution  that  control  Congress 
when  legislating  for  such  territorial  possessions  as 
are  not  within  the  States,  and  other  provisions  that 
do  not.  Those  that  do  not,  he  says,  may,  however,  be 
made  applicable  by  acts  of  Congress,  and  in  part  this 
has  already  been  done  in  the  case  of  all  but  the  re- 
cently acquired  possessions.  And,  he  adds,  "when 
the  Constitution  has  been  once  formally  extended  by 
Congress  to  territories,  neither  Congress  nor  the  terri- 
torial legislature  can  enact  laws  inconsistent  there- 
with. ' '  In  making  this  last  assertion  he  is  indubitably 
incorrect.  If  an  act  of  legislation  is  required  to  ex- 
tend the  Constitution  over  a  territory,  it  goes  there 
not  as  a  Constitution  but  as  a  statute,  and  an  irre- 
pealable  statute  is  admitted  by  every  one  to  be  an 

222 


STATUS   OF   TERRITORIES 


iiiipossibiiity — every  legislature  necessarily  possessing 
a  power  to  repeal  equal  to  its  power  to  enact.  This 
being  so,  if  the  premises  of  Justice  Brown  be  accepted, 
the  conclusion  must  also  be  accepted  that  at  the  pres- 
ent time  every  territory  of  the  United  States,  organ- 
ized and  unorganized,  contiguous  and  non-contigu- 
ous, continental  and  insular,  still  remains,  except 
possibly  as  to  a  few  general  rights,  absolutely  subject 
to  the  arbitrary  will  of  Congress.  Arizona,  New 
Mexico,  Oklahoma,  and  even  the  District  of  Columbia 
in  this  respect  stand  upon  a  footing  exactly  the  same 
as  that  of  Porto  Rico  or  the  Philippines. 

The  foregoing,  however,  is  not  the  only  objection- 
able conclusion  that  may  be  drawn  from  Justice 
Brown's  reasoning.  Logically  it  would  seem  that  his 
premise  that  the  Constitution  was  intended  only  for 
the  States  would  lead  to  the  conclusion  that  Congress, 
which  of  course  derives  all  its  powers  from  that  in- 
strument, would  not  have  the  authority  to  govern  ter- 
ritories at  all.  Hon.  John  G.  Carlisle,  in  his  address 
to  the  American  Bar  Association,  has  stated  this  di- 
lemma very  clearly.  "Whether  we  agree  to  it  or  not," 
he  says,  "we  can  all  understand  the  proposition  that 
the  Constitution  was  made  for  the  States,  and  that, 
of  its  own  force,  it  has  no  application  to  a  territory. 
It  is  very  simple,  and,  if  it  could  be  established,  it 
would  put  an  end  to  the  controversy,  but  it  would  also 
put  an  end  to  the  constitutional  power  of  Congress 
to  govern  a  territory,  because  that  power  would  not  be 
included  in  any  of  those  delegated  to  that  body.  All 
its  powers  would  be  confined  to  the  States.  No  power 
to  govern  a  territory  could  be  implied,  because,  ae- 

223 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

cording  to  this  theory,  it  would  be  inconsistent  with 
the  very  purpose  for  which  the  Constitution  was  made, 
and  we  would,  therefore,  be  in  the  awkward  position 
of  possessing  the  power  to  acquire  territory,  but  with- 
out power  to  govern  it  unless  immediately  admitted 
as  a  State." 

This  very  radical  position  taken  by  Justice  Brown 
in  the  Insular  Cases  has  been  stated  at  some  length 
because  of  the  prominence  that  has  been  given  it  in 
the  newspapers  and  public  discussions  of  the  judg- 
ments rendered  by  the  Supreme  Court  in  the  Insular 
Cases.  As  a  matter  of  fact,  however,  this  position 
was  not  concurred  in  by  any  one  of  the  other  eight 
justices,  and  it  thus  stands  not  only  unsupported  by 
previous  opinions  of  the  Court,  but  in  flat  contradic- 
tion to  many  of  them.  The  four  justices  that  con- 
curred with  Justice  Brown  in  the  judgment  that  was 
rendered  in  the  ease  of  Downes  v.  Bidwell,  namely, 
that  the  constitutional  provision  that  duties  shall  be 
uniform  "throughout  the  United  States"  does  not 
restrain  Congress  in  legislating  for  the  newly  acquired 
islands,  were  able  to  do  this  by  the  following  reason- 
ing. 

The  "United  States,"  as  that  term  is  employed  in 
the  Constitution,  they  said,  includes  not  simply  the 
States,  as  Justice  Brown  had  said,  but  also  such  terri- 
tories as  have  been  "incorporated"  with  them;  and 
the  Constitution  itself  therefore  extends  over  them 
as  well  as  over  the  States— not  of  course,  however,  in 
the  sense  that  the  powers  of  Congress  when  legislating 
for  the  States  and  the  incorporated  territories  are  the 
same,  but  that  so  far  as  applicable,  the  provisions  of 

224 


STATUS  OF   TERRITORIES 


the  Constitution  are  at  once  applicable  to  all  terri- 
tories subject  to  the  sovereignty  of  the  United  States, 
and  therefore  require  no  act  of  Congress  for  their 
extension,  nor  can  their  application  to  such  territories 
be  denied  by  Congress. 

These  four  justices  were  the  same  that  had  dissented 
from  the  judgment  in  the  De  Lima  v.  Bidwell  case, 
which  decided  that  by  the  treaty  of  cession  Porto  Rico 
at  once  ceased  to  be  "foreign  territory"  within  the 
meaning  of  the  federal  tariff  laws.  Reaffirming  this 
same  opinion  in  the  Downes  case,  they  asserted  that 
by  the  ratification  of  the  treaty  of  cession  Porto  Rico 
came  under  the  sovereignty  of  the  United  States,  or, 
to  use  their  own  expression,  became  "appurtenant" 
to  it,  but  was  not  thereby  "incorporated"  into  the 
"United  States."  In  other  words,  it  became  a  terri- 
tory belonging  to  the  United  States  but  not,  when 
looked  at  from  a  constitutional  viewpoint,  a  part 
thereof.  To  effect  this  latter  change  of  status,  they 
declared,  the  treaty-making  power  is  incompetent,  the 
approval  of  Congress,  express  or  implied,  being  re- 
quired. 

Without  attempting  even  a  summary  of  the  legis- 
lative acts  and  judicial  expressions  which  these  jus- 
tices claimed  supported  them  in  their  view,  we  may 
profitably  reproduce  their  conclusion  in  their  own 
words :  "It  is, "  they  said,  ..."  indubitably  settled  by 
the  principles  of  the  law  of  nations,  by  the  nature  of 
the  government  created  under  the  Constitution,  by  the 
express  and  implied  powers  conferred  upon  that  gov- 
ernment by  the  Constitution,  by  the  mode  in  which 
those  powers  have  been  executed  from  the  beginning, 

15  225 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

and  by  an  unbroken  line  of  decisions  of  this  Court, 
first  announced  by  Marshall  and  followed  and  lucidly 
expounded  by  Taney,  that  the  treaty-making  power 
cannot  incorporate  territory  into  the  United  States 
without  the  express  or  implied  assent  of  Congress, 
that  it  may  insert  in  a  treaty  conditions  against  im- 
mediate incorporation,  and  that,  on  the  other  hand, 
when  it  has  expressed  in  the  treaty  the  conditions  fa- 
vorable to  incorporation,  they  will,  if  the  treaty  be  not 
repudiated  by  Congress,  have  the  force  of  the  law  of 
the  land,  and  therefore  by  the  fulfilment  of  such  con- 
ditions cause  incorporation  to  result.  It  must  follow, 
therefore,  that  where  a  treaty  contains  no  conditions 
for  incorporation,  and,  above  all,  where  it  not  only  has 
no  such  conditions,  but  expressly  provides  to  the  con- 
trary, that  incorporation  does  not  arise  until  in  the 
wisdom  of  Congress  it  is  deemed  that  the  acquired 
territory  has  reached  that  state  where  it  is  proper  that 
it  should  enter  into  and  form  a  part  of  the  American 
family."^ 

As  has  been  already  said,  according  to  the  view  of 
these  four  justices,  the  Constitution  is  the  charter  of 
government  not  only  of  the  States  but  also  both  of  the 
territories  that  have  been  incorporated  into  the  Union 
and  those  merely  appurtenant  to  the  United  States. 
Every  function  of  the  Federal  Government,  they  de- 

1  Article  IX  of  the  Spanish- American  treaty  contains  the  fol- 
lowing clause  :  "  The  civil  rights  and  political  status  of  the  na- 
tive inhabitants  of  the  territories  hereby  ceded  to  the  United 
States  shall  be  determined  by  Congress."  Spanish  subjects,  na- 
tives of  Spain,  are  by  the  same  article  to  be  permitted  to  elect 
whether  they  will  become  United  States  subjects  or  retain  their 
Spanish  citizenship. 

226 


STATUS   OF   TERRITORIES 


clare,  is  derived  from  the  Constitution  and  that  in- 
strument is  everywhere  potential  so  far  as  its  pro- 
visions are  applicable.  Therefore,  "in  the  case  of  the 
territories,  as  in  every  other  instance  when  a  provision 
of  the  Constitution  is  invoked,  the  question  which 
arises  is,  not  whether  the  Constitution  is  operative, 
for  that  is  self-evident,  but  whether  the  provision  re- 
lied on  is  applicable."  Starting,  then,  with  this  prin- 
ciple and  the  premise  that  Porto  Rico  was  not  by  the 
treaty  of  cession  incorporated  into  the  United  States, 
these  justices  proceed  to  determine  what  provisions 
of  the  Constitution  are  applicable  to  it. 

The  limitations  placed  by  the  Constitution  upon  the 
powers  of  Congress  they  divided  into  two  classes  which 
correspond  quite  closely  to  the  two  classes  recognized 
by  Justice  Brown.  "Undoubtedly,"  they  said  "there 
are  general  prohibitions  in  the  Constitution  in  favor 
of  the  liberty  and  property  of  the  citizen,  which  are 
not  mere  regulations  as  to  the  form  and  manner  in 
which  a  conceded  power  may  be  exercised,  but  which 
are  an  absolute  denial  of  all  authority  under  any  cir- 
cumstances or  conditions  to  do  particular  acts." 
These  prohibitions  are  operative  upon  Congress  when 
legislating  for  territories  whether  incorporate  or 
merely  appurtenant. 

Upon  the  other  hand,  they  asserted,  there  are  limita- 
tions upon  the  powers  of  Congress  which  apply  only 
w^hen  that  body  is  enacting  laws  for  the  United  States, 
that  is,  for  the  States  and  the  incorporated  territories. 
Among  the  limitations  of  this  sort,  they  held,  is  the 
one  involved  in  the  case  then  decided,  providing  that 
all  duties  shall  be  uniform  "throughout  the  United 

227 


THE   AMERICAN    CONSTITUTIONAL   SYSTEM 

States."  Therefore,  they  held,  that  that  portion  of 
the  Foraker  Act  which  provided  for  Porto  Rico  a 
tariff  different  from  that  in  force  in  the  United  States 
was  not  unconstitutional. 

Four  justices  dissented  both  from  the  judgment  ren- 
dered in  this  case  and  from  the  reasonings  by  which 
it  was  supported.  According  to  their  view  there  is 
no  constitutional  distinction  to  be  drawn  between  ter- 
ritories incorporated  into  the  United  States  and  terri- 
tories unincorporated  or  merely  appurtenant  to  the 
United  States.  States  and  territories,  they  declared, 
are  the  only  political  units  known  to  American  Con- 
stitutional Law,  and  when,  by  a  treaty  of  cession  and 
actual  occupation,  lands  and  their  inhabitants  have 
come  under  the  sovereignty  of  the  United  States,  such 
lands  are  a  part  of  the  United  States,  and  no  approv- 
ing act  of  Congress  is  needed  or  is  efficient  to  increase 
the  constitutional  privileges  to  which  they  are  entitled 
and  to  make  effective  the  legislative  limitations  upon 
the  powers  of  Congress.  This  view  they  showed  to 
have  been  the  one  almost  uniformly  accepted  by  all 
three  of  the  departments  of  the  General  Government 
since  the  adoption  of  the  Constitution.  Especially 
they  relied  upon  the  case  of  Loughborough  v.  Blake 
(5  Wh.,  317),  which  had  never  been  overruled,  in 
which  Chief  Justice  Marshall,  when  asked  to  hold  that 
the  District  of  Columbia  was  not  a  part  of  the  United 
States,  declared:  "Does  this  term  [the  United  States] 
designate  the  whole  or  any  particular  portion  of  the 
American  empire  ?  Certainly  this  question  can  admit 
of  but  one  answer.  It  is  the  name  given  to  our  great 
republic,  which  is  composed  of  States  and  territories. 

228 


STATUS   OF   TERRITORIES 


The  District  of  Columbia,  or  the  territory  west  of  the 
Missouri,  is  not  less  within  the  United  States  than 
Maryland  or  Pennsylvania,  and  it  is  not  less  necessary, 
on  the  principles  of  our  Constitution,  that  uniformity 
in  the  imposition  of  imposts,  duties,  and  excises  should 
be  observed  in  the  one  than  in  the  other." 

In  the  separate  opinion  which  he  prepared.  Justice 
Harlan  was  especially  emphatic  in  his  repudiation 
both  of  the  doctrine  asserted  by  Justice  Brown  that 
the  Constitution  was  created  "by  the  people  of  the 
United  States,  as  a  union  of  States,  to  be  governed 
solely  by  representatives  of  the  States,"  and  of  the 
theory  of  the  other  four  justices  as  to  the  status  of 
' '  unincorporated ' '  territories. 

In  order  fully  to  appreciate  the  radical  character 
of  the  doctrine  held  by  the  four  justices  who  con- 
curred with  Justice  Brown  in  the  judgment  in  the 
Downes  case,  it  is  necessary  clearly  to  appreciate 
that  it  was  held,  in  effect,  that  this  so-called  incor- 
poration of  a  territory  bj^  Congress  into  the  United 
States  is  not  an  act  the  commission  of  which  is  to  be 
determined  by  facts,  but  only  by  the  formal  declara- 
tion of  an  intention  expressly  declared  by  Congress. 
So  long  as  this  intention  is  not  asserted,  a  terri- 
tory is  declared  to  remain  unincorporated  into  the 
United  States  notwithstanding  the  fact  that,  as  was 
the  case  in  Porto  Rico,  a  complete  territorial  govern- 
ment may  have  been  created,  federal  courts  estab- 
lished, with  the  right  of  appeal  therefrom  to  the 
United  States  Supreme  Court,  and  all  the  local  officials 
required  to  take  an  oath  to  support  the  Constitution 
of  a  Union  of  which  they  were  not  a  part.    Especially 

229 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

difficult  to  accept  is  the  declaration  that  the  treaty- 
making  power  of  the  National  Government  is  by  itself 
incompetent  to  add  territory  to  the  United  States  in 
a  domestic,  constitutional  sense.  The  authority  of 
treaty-making  power  to  annex  territory  is  conceded; 
the  Constitution  itself  places  treaties  upon  a  plane  of 
equality  with  the  statutes  of  Congress;  and  the  Su- 
preme Court  has  repeatedly  affirmed  that  a  subsequent 
treaty  operates  as  a  repeal  of  all  acts  of  Congress 
inconsistent  with  it;  wherefore  it  would  seem  irresis- 
tibly to  follow  that  when  the  treaty-making  power  has 
accepted  an  unconditional  cession  of  territory  to  the 
United  States,  that  act  is  as  absolutely  valid  and  as 
fully  operative  as  though  Congress  itself  had  legislated 
upon  the  subject.  To  assert  the  contrary  is,  in  effect, 
to  say  that  the  treaty-making  and  the  law-making 
powers  are  not  coordinate  in  power,  the  express  pro- 
vision of  the  Constitution  to  the  contrary  notwith- 
standing. 

Another  objection  to  the  doctrine  of  the  Downes 
case  which  it  seems  absolutely  impossible  to  overcome, 
is  that,  in  reality,  it  does  not  simply  assert  the  right 
of  Congress  to  legislate  regarding  unincorporated  ter- 
ritory without  regard  to  some  of  the  limitations  im- 
posed by  the  Constitution,  but  declares  that  in  the 
exercise  of  this  absolute  power  Congress  may,  in  effect 
at  least,  disregard  those  same  restrictions  with  refer- 
ence to  the  inhabitants  of  the  States  of  the  Union. 
No  argument  is  needed  to  show  that  a  tariff  law  which 
affects  articles  taken  from  a  State  to  an  unincorpo- 
rated territory,  or  from  the  latter  to  the  former,  affects 
the  inhabitants  of  both,  and  cannot  therefore  be  said 

230 


STATUS   OF   TERRITORIES 


to  be  simply  a  local  law.  But  if  not  limited  in  its 
effects  to  the  unincorporated  territory  in  question,  it 
would  seem  to  be  an  act  necessarily  subject  to  the 
constitutional  limitations  placed  upon  Congress  when 
legislating  for  the  States.  It  is  therefore  impossible 
to  escape  the  arguments  of  the  dissenting  justices  in 
the  Downes  case  when  they  say :  "  Conceding  that  the 
power  to  tax  for  the  purposes  of  territorial  govern- 
ment is  implied  from  the  power  to  govern  territory, 
whether  the  latter  power  is  attributed  to  the  power  to 
acquire  or  the  power  to  make  needful  rules  and  regu- 
lations, these  particular  duties  are  nevertheless  not 
local  in  their  nature,  but  are  imposed  as  in  the  exercise 
of  national  powers.  The  levy  is  clearly  a  regulation 
of  commerce,  and  a  regulation  affecting  the  States 
and  their  people  as  well  as  this  territory  and  its  people. 
...  In  any  point  of  view,  the  imposition  of  duties 
on  commerce  operates  to  regulate  commerce,  and  is 
not  a  matter  of  local  legislation;  and  it  follows  that 
the  levy  of  these  duties  was  in  the  exercise  of  the 
national  power  to  do  so,  and  subject  to  the  requirement 
of  geographical  uniformity." 

Lastly,  it  may  be  said  in  objection  to  the  doctrines 
declared  in  the  Downes  case,  that  in  attempting  to 
give  to  Congress  a  right  to  legislate  for  certain  terri- 
tories under  United  States  sovereignty  free  from  cer- 
tain limitations  placed  by  the  Constitution  upon  its 
powers,  there  is  seriously  weakened,  if  not,  from  a 
strictly  logical  standpoint,  absolutely  destroyed,  that 
most  fundamental  principle  of  our  constitutional  ju- 
risprudence according  to  which  all  the  provisions  of 
the  Constitution  are  equally  binding  upon  Congress. 

231 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

The  distinction  that  is  made  between  the  absolute 
prohibitions  of  legislative  power  and  the  limitations 
imposed  by  the  Constitution  upon  the  exercise  of  the 
powers  that  are  granted,  is  clearly  not  qualified  to  sup- 
port the  conclusion  that  Congress  under  certain  cir- 
cumstances may  disregard  the  latter  when  it  may  not 
the  former.  As  Chief  Justice  Fuller  declared  in  his 
dissenting  opinion :  "It  is  idle  to  discuss  the  distinc- 
tion between  a  total  want  of  power  and  a  defective 
exercise  of  it;"  and  again,  "The  powers  delegated  by 
the  people  to  their  agents  are  not  enlarged  by  the 
expansion  of  the  domain  within  which  they  are  exer- 
cised. When  the  restriction  on  the  exercise  of  a  par- 
ticular power  by  a  particular  agent  is  ascertained, 
that  is  an  end  to  the  question.  To  hold  otherwise  is 
to  overthrow  the  basis  of  our  constitutional  law." 
Mr.  Carlisle  in  the  address  from  which  we  have  al- 
ready once  quoted,  has  also  shown  so  clearly  the  fal- 
lacy of  the  argument  of  the  prevailing  opinion  upon 
this  point  that  we  are  justified  in  reproducing  his 
words.  He  says:  "The  distinction  attempted  to  be 
taken  between  the  obligatory  force  of  absolute  pro- 
hibitions upon  the  power  of  Congress  and  the  obli- 
gatory force  of  limitations  and  qualifications  imposed 
by  the  Constitution  upon  the  exercise  of  its  powers 
over  a  particular  subject,  cannot,  in  my  opinion,  be 
sustained  by  any  sound  process  of  reasoning.  It  is 
true  that  there  is  a  difference  in  degree  between  an 
absolute  denial  of  all  power  to  do  a  particular  thing 
and  a  grant  of  power  to  do  that  thing  to  a  limited 
extent,  or  in  a  prescribed  manner  only;  but  the  ab- 
solute prohibition  and  the  express  or  implied  limita- 

232 


STATUS  OF   TERRITORIES 


tion  are  equally  obligatory  upon  Congress.  It  is 
bound  to  obey  both  or  its  act  is  void.  ...  To  say 
that  Congress,  in  legislating  for  a  territory,  is  not 
bound  by  the  constitutional  limitations  upon  a 
granted  power,  but  is  or  may  be  bound  by  the  express 
prohibitions,  is  simply  to  assert  that  all  parts  of  the 
Constitution  are  not  of  equal  force  and  effect  as  re- 
straints upon  legislation,  and  that  a  power  not  granted 
may  be  constitutionally  exercised  if  it  is  not  expressly 
prohibited,  a  theory,  which,  if  sanctioned  by  the  ju- 
diciary, would  at  once  revolutionize  the  government. 
It  would  no  longer  be  a  government  of  enumerated 
and  delegated  powers,  but  would  possess  the  whole 
mass  of  sovereign  power  which  is  now  vested  in  the 
people,  subject  only  to  the  comparatively  few  express 
prohibitions. ' ' 

The  latest  of  the  cases  dealing  with  the  question  of 
the  civil  rights  of  the  inhabitants  of  the  insular  pos- 
sessions of  the  United  States  is  that  of  The  Territory 
of  Hawaii  v.  Mankichi  (190  U.  S.,  197),  decided  June 
1,  1903.  The  facts  and  questions  of  law  involved 
in  this  case  were  these.  The  Joint  Resolution  of  Con- 
gress of  July  7,  1898,  providing  for  the  annexation  of 
the  Hawaiian  Islands,  expressly  provided  that  "The 
municipal  legislation  of  the  Hawaiian  Islands,  .  .  . 
not  inconsistent  with  this  joint  resolution,  nor  con- 
trary to  the  Constitution  of  the  United  States,  nor  to 
any  existing  treaty  of  the  United  States,  shall  remain 
in  force  until  the  Congress  of  the  United  States  shall 
otherwise  determine."  After  the  annexation  to  the 
United  States,  Congress  not  having  determined  other- 
wise, the  defendant  in  error,  Mankichi,  was  tried  for 

233 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

and  convicted  of  manslaughter  according  to  the  usual 
course  of  procedure  in  force  in  the  Republic  of  Ha- 
waii prior  to  July  7,  1898,  which  course  of  procedure 
did  not  require  the  indictment  to  be  found  by  a  grand 
jury,  and  which  permitted  a  less  number  than  the 
entire  twelve  of  the  petit  jury  to  convict.  A  petition 
for  a  writ  of  habeas  corpus  having  been  made  by  Man- 
kichi  upon  the  ground  that,  according  to  the  Constitu- 
tion of  the  United  States,  one  might  not  be  tried  for 
manslaughter  except  upon  an  indictment  or  present- 
ment found  by  a  grand  jury,  nor  convicted  except  by 
a  unanimous  petit  jury,  and  the  case  having  been  ap- 
pealed to  the  Supreme  Court  of  the  United  States, 
that  tribunal  was  called  upon  to  determine:  first, 
whether  it  was  the  intention  and  the  necessary  effect 
of  the  annexing  joint  resolution  to  make  these  consti- 
tutional provisions  immediately  applicable  to  the 
islands;  and  secondly,  if  it  did  not,  whether  it  lay 
within  the  power  of  Congress  or  of  the  authorities  of 
Hawaii  to  deny  to  the  accused  the  rights  in  question. 
Both  of  these  questions  the  majority  of  the  court,  five 
justices,  answered  in  the  affirmative. 

Passing  upon  the  intention  and  effect  of  the  annex- 
ing resolution,  Justice  Brown  in  his  opinion  said :  "  Of 
course,  under  the  Newland's  [annexing]  resolution, 
any  new  legislation  must  conform  to  the  Constitution 
of  the  United  States;  but  how  far  the  exceptions  to 
the  existing  municipal  legislation  were  intended  to 
abolish  existing  laws  must  depend  somewhat  upon  cir- 
cumstances. Where  the  immediate  application  of  the 
Constitution  required  no  new  legislation  to  take  the 
place  of  that  which  the  Constitution  abolished,  it  may 

234 


STATUS   OF   TERRITORIES 


be  well  held  to  have  taken  immediate  effect;  but  where 
the  application  of  a  procedure  well  known  and  acqui- 
esced in  left  nothing  to  take  its  place,  without  new 
legislation,  the  result  might  be  so  disastrous  that  we 
might  well  say  that  it  could  not  have  been  within  the 
contemplation  of  Congress." 

With  reference  to  the  question  of  the  non-applica- 
bility ex  proprio  vigore  of  the  constitutional  provisions 
involved,  Justice  Brown  declared:  "]\Iost,  if  not  all, 
of  the  privileges  and  immunities  contained  in  the  Bill 
of  Rights  of  the  Constitution  w^ere  intended  to  apply 
from  the  moment  of  annexation;  but  we  place  our 
decision  of  this  case  upon  the  ground  that  the  two 
rights  alleged  to  be  violated  in  this  case  are  not  funda- 
mental in  their  nature,  but  concern  merely  a  method 
of  procedure  which  sixty  years  of  practice  had  shown 
to  be  suited  to  the  conditions  of  the  islands,  and  well 
calculated  to  conserve  the  rights  of  their  citizens  to 
their  lives,  their  property,  and  their  well-being. ' ' 

Two  of  the  majority  justices  further  justified  the 
judgment  that  was  rendered  upon  the  ground,  "That 
as  a  consequence  of  the  relation  which  the  Hawaiian 
Islands  occupied  toward  the  United  States,  growing 
out  of  the  resolution  of  annexation,  the  provisions  of 
the  Fifth  and  Sixth  Amendments  of  the  Constitution 
concerning  grand  and  petit  juries  were  not  applicable 
to  that  territory,  because  whilst  the  effect  of  the  reso- 
lution of  annexation  was  to  acquire  the  islands,  and 
subject  them  to  the  sovereignty  of  the  United  States, 
neither  the  terms  of  the  resolution  nor  the  situation 
which  arose  from  it  served  to  incorporate  the  Hawaiian 
Islands  into  the  United  States,  and  make  them  an 

235 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

integral  part  thereof."  In  other  words,  these  two 
justices  held  the  case  to  be  controlled  by  the  decision 
in  Downes  v.  Bidwell. 

To  the  foregoing  judgment  of  the  Court  as  well  as 
to  the  reasoning  by  which  it  was  supported,  four  jus- 
tices entered  an  emphatic  dissent.  Three  of  these  con- 
tented themselves  simply  with  an  argument  that,  as 
a  matter  of  fact,  the  provision  of  the  resolution  of  an- 
nexation which  has  been  quoted  above,  validating  all 
existing  legislation,  except  such  as  might  be  contrary 
to  the  Constitution  of  the  United  States,  should  be 
construed  as  having  extended  over  the  islands  the 
Fifth  and  Sixth  Amendments  to  that  instrument. 
Justice  Harlan,  however,  in  his  dissenting  opinion,  in 
addition  to  this,  attacked  the  validity  of  the  position 
assumed  by  the  majority  that  it  was  within  the  con- 
stitutional power  of  Congress  to  exclude  from  opera- 
tion in  a  territory,  incorporate  or  not  incorporate,  any 
of  the  provisions  of  the  Constitution.  "In  my  opin- 
ion," said  he,  "the  Constitution  of  the  United  States 
became  the  supreme  law  of  Hawaii  immediately  upon 
the  acquisition  by  the  United  States  of  complete  sov- 
ereignty over  the  Hawaiian  Islands,  and  without  any 
act  of  Congress  formally  extending  the  Constitution 
to  those  islands.  It  then,  at  least,  became  controlling, 
beyond  the  power  of  Congress  to  prevent.  From  the 
moment  when  the  government  of  Hawaii  accepted  the 
joint  resolution  of  1898,  by  a  formal  transfer  of  its 
sovereignty  to  the  United  States,— when  the  flag  of 
Hawaii  was  taken  down,  by  authority  of  Hawaii,  and 
in  its  place  was  raised  that  of  the  United  States,— 
every  human  being  in  Hawaii  charged  with  the  com- 

236 


STATUS   OF   TERRITORIES 


missiou  of  crime  there  could  have  riuhtly  insisted  that 
neither  his  life  nor  his  liberty  could  be  taken,  as  pun- 
ishment for  crime,  by  any  process,  or  as  the  result  of 
any  mode  of  procedure,  that  was  inconsistent  with  the 
Constitution  of  the  United  States.  ...  I  stand  by 
the  doctrine  that  the  Constitution  is  the  supreme  law 
of  every  territory,  as  soon  as  it  comes  under  the  sov- 
ereign dominion  of  the  United  States  for  purposes  of 
civil  administration,  and  whose  inhabitants  are  under 
its  entire  authority  and  jurisdiction.  I  could  not  hold 
otherwise  without  conceding  the  power  of  Congress, 
the  creature  of  the  Constitution,  by  mere  non-action, 
to  withhold  vital  constitutional  guarantees  from  the 
inhabitants  of  a  territory  governed  by  the  authority, 
and  only  by  the  authority,  of  the  United  States. ' ' 

As  regards  the  assertion  made  in  the  majority  opin- 
ion that  the  rights  secured  by  the  Fifth  and  Sixth 
Amendments  are  not  "fundamental,"  Justice  Harlan 
declared:  "It  is  a  new  doctrine,  I  take  leave  to  say,  in 
our  constitutional  jurisprudence,  that  the  framers  of 
the  Constitution  did  not  regard  those  provisions  and 
the  rights  secured  by  them,  as  fundamental  in  their 
nature.  It  is  an  undisputed  fact  in  the  history  of  the 
Constitution  that  that  instrument  would  not  have  been 
accepted  by  the  required  number  of  States,  but  for 
the  promise  of  the  friends  of  that  instrument,  at  the 
time,  that  immediately  upon  the  adoption  of  the  Con- 
stitution, amendments  would  be  proposed  and  made 
that  should  prevent  the  infringement  by  any  federal 
tribunal  or  agency,  of  the  rights  then  commonly  re- 
garded as  embraced  in  Anglo-Saxon  liberty;  among 
which  rights,  according  to  universal  belief  at  that  time, 

237 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

were  those  secured  by  the  provisions  relating  to  grand 
and  petit  juries." 

In  the  foregoing  account  of  the  "Insular  Cases" 
there  has  been  given  a  statement  not  only  of  the  pre- 
vailing but  of  the  dissenting  opinions.  Furthermore, 
to  some  extent,  the  etfort  has  been  made  to  present  the 
reasoning  employed  in  their  support.  This  has  been 
done  not  solely  because  of  the  very  great  importance 
of  the  constitutional  questions  involved,  but  also  be- 
cause, as  a  matter  of  fact,  there  is  some  ground  for 
believing  that  the  judgments  rendered  have  by  no 
means  definitely  fixed  the  law  upon  these  points. 
Therefore  it  is  quite  desirable  that  we  should  be  sup- 
plied with  the  principle  upon  w'hich,  possibly,  if  not 
probably,  the  doctrine  finally  accepted  will  be  founded. 

One  important  point  is  to  be  noticed  in  the  very 
beginning  of  a  criticism  of  the  prevailing  opinions  in 
these  cases.  As  will  have  been  seen  from  the  account 
that  has  been  given  of  the  case,  though  there  was  a 
judgment  concurred  in  by  five  justices  in  Downes  v. 
Bidwell,  namely,  the  judgment  that  the  tax  uniformity 
clause  was  not  applicable  to  the  island  Porto  Rico,  one 
of  these  five  justices  based  his  conclusion  upon  reason- 
ing that  was  repudiated  both  by  the  four  justices  who 
concurred  in  the  judgment  and  by  the  four  who  dis- 
sented from  it.  There  was  therefore  declared  in  that 
case  no  constitutional  doctrine  that  received  the  ap- 
proval of  a  majority  of  the  court.  Moreover,  the  four 
justices  who  concurred  wath  Justice  Brown  in  the 
judgment  that  was  rendered  did  so  upon  a  principle 
that  a  clear  majority  of  the  court  had  just  declared 
invalid  in  the  case  of  De  Lima  v.  Bidwell ;  wiiereas  the 

238 


STATUS   OF   TERRITORIES 


four  dissenting  justices  based  their  opinion  upon  a 
principle  which  that  case  had  held  sound/ 

DISTRICT  OF  COLUMBIA 

The  constitutional  status  of  the  district  used  as  the 
seat  of  the  Federal  Government  is  almost  exactly  the 
same  as  that  of  the  territories.  In  the  case  of  Lough- 
borough V.  Blake  (5  Wh.,  317),  so  often  cited  in  the 
Insular  Cases,  Chief  Justice  Marshall  emphatically 
declared,  as  we  have  already  learned,  that  the  District 
of  Columbia  was  a  part  of  the  United  States,  and  that 
in  legislating  for  it  Congress  is  restrained  by  the  limi- 
tations constitutionally  placed  upon  the  exercise  of  its 
powers.  The  Downes  case,  however,  has  held  this  to 
be  an  erroneous  dictum. 

As  early  as  1804,  in  Hepburn  v.  Ellzey  (2  Cr.,  445), 
it  was  held  that  the  District  of  Columbia  was  not  a 
State  in  the  sense  in  which  that  word  is  used  in  the 
constitutional  clause  that  gives  to  the  federal  courts 

1  Upon  this  point  see  the  remarks  of  Professor  J.  W.  Burgess 
in  the  "Political  Science  Quarterly,"  XVI  (1901),  p.  504.  The 
opinion  of  this  corapetent  critic,  himself  a  firm  believer  in  im- 
perialism as  a  principle  of  Anglo-Saxon  polities,  is  as  follows : 
"The  judgment  in  the  Downes  ease  is  .  .  ,  nothing  but  an 
arbitrary  bit  of  patchwork.  Its  purpose  is  to  satisfy  a  certain 
demand  of  fancied  political  expediency  in  the  work  of  imperial 
expansion.  It  is  based  upon  the  narrowest  possible  \iew  of  that 
expediency;  for  I  venture  to  affirm  that  in  the  prosecution  of 
that  policy  the  simple  knowledge  on  the  part  of  those  to  be  made 
subject  to  it  that  the  constitutional  liberties  of  the  great  repub- 
lic were  to  be  extended  to  them,  as  well  as  the  powers  extended 
over  them,  would  be  worth  to  us  an  army  of  a  million  of  men." 

239 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


jurisdiction  in  suits  between  citizens  of  different 
States. 

In  De  Geofroy  v.  Riggs  (133  U.  S.,  258)  it  was,  how- 
ever, declared  that  the  District  was  one  of  "the  States 
of  the  Union"  within  the  meaning  of  that  term  as  used 
in  an  international  agreement.^ 

The  reasoning  by  which  Marshall  in  the  Lough- 
borough case  found  the  District  entitled  to  the  protec- 
tion of  the  limiting  clauses  of  the  Constitution,  was 
approved  by  the  dissenting  justices  in  the  Downes  v. 
Bidwell  case,  and  repudiated  by  the  majority  justices. 
These  latter,  however,  affirmed,  as  a  matter  of  fact, 
that  the  protection  of  these  constitutional  limitations 
had  been  extended  over  the  District  by  a  specific  act 
of  Congress.^ 

1  This  case  is  cited  by  Justice  Brown  in  his  opinion  in  the  case 
of  Downes  v.  Bidwell,  as  illustrating  the  broader,  international  use 
of  the  term  "  United  States." 

2  16  "  Statutes  at  Large,"  chap.  62,  sec.  34. 


240 


CHAPTER  XV 


CITIZENSHIP 


The  subject  of  eitizensliip  in  the  United  States  is 
one  the  exact  legal  definition  of  which  is  not  yet  set- 
tled, notwithstanding  the  fact  that  an  amendment  to 
the  Constitution  has  been  adopted,  the  chief  purpose 
of  which  was  to  effect  this. 

As  adopted,  the  federal  Constitution  contained  no 
definition  of  citizenship.  Impliedly,  however,  it  recog- 
nized a  state  citizenship  in  that  clause  which  pro- 
vides that  ''citizens  of  each  State  shall  be  entitled  to 
all  the  privileges  and  immunities  of  citizens  in  the 
several  States. ' '  It  also  would  seem  to  have  recognized 
a  federal  citizenship  in  the  clauses  providing  that  the 
President  shall  be  "  a  natural  born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of 
this  Constitution;"  that  Senators  and  Representatives 
shall  have  been  nine  and  seven  years  respectively 
citizens  "of  the  United  States;"  and  that  Congress 
shall  have  the  power  to  pass  laws  regulating  the  natu- 
ralization of  aliens. 

The  relationship  between  these  two  citizenships,— 
state  and  national,— however,  the  Constitution  did 
not  expressly  determine. 

By  some  it  was  asserted  that  there  was  no  federal 
16  241 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

citizenship  apart  from  state  citizenship — that  one  be- 
came a  citizen  of  the  United  States  only  by  being  or 
becoming  a  citizen  of  one  of  the  States.  Calhoun  has 
been  credited  with  holding  this  view/  This,  however, 
is  not  quite  correct.  In  a  speech  delivered  in  the 
United  States  Senate  in  1833  upon  the  then  pending 
Force  Bill,  he  declared:  "If  by  a  citizen  of  the  United 
States  he  [Senator  Clayton]  means  a  citizen  at  large, 
one  whose  citizenship  extends  to  the  entire  geograph- 
ical limits  of  the  country  without  having  a  local 
citizenship  in  some  State  or  territory,^  a  sort  of  a 
citizen  of  the  world,  all  I  have  to  say  is  that  such  a 
citizen  would  be  a  perfect  nondescript ;  that  not  a 
single  individual  of  this  description  can  be  found  in 
the  entire  mass  of  our  population.  .  .  .  Every  citizen 
is  a  citizen  of  some  State  or  territory,  and  as  such, 
under  an  express  provision  of  the  Constitution,  is  en- 
titled to  all  the  privileges  and  immunities  of  citizens 
in  the  several  States;  and  it  is  in  this  and  no  other 
sense  that  we  are  citizens  of  the  United  States." 

From  this  it  will  be  seen  that  Calhoun  recognized 
not  only  a  state  citizenship  but  a  territorial  citizenship, 
which  latter  of  course  could  be  derived  only  from  a 
federal  source.  What  he  and  others  of  the  States' 
Rights  school  held  was  that  as  between  state  citizen- 
ship and  federal  citizenship,  the  former  was  the  more 
fundamental ;  that,  in  other  words,  the  latter  was  de- 
rived from  the  former.  The  fact  of  the  federal  control 
of  naturalization  Calhoun  explained  by  alleging  that 
that  power  was  one  which  enabled  Congress  simply  to 

1  Brannon,  "The  Fourteenth  Amendment,"  p.  17. 
2  Italics  our  own. 

242 


CITIZENSHIP 


remove  the  disabilities  of  foreign  birth,  the  several 
States  being  left  free  to  decide  whether  or  not,  when 
such  disabilities  had  been  removed  from  aliens  resi- 
dent within  their  borders,  they  should  be  accepted  by 
them  as  citizens.  In  1832,  however,  in  the  case  of 
Gassies  v.  Ballon  (6  Pet.,  761),  this  construction  was 
declared  incorrect  by  Chief  Justice  ]\Iarshall.  "The 
defendant  in  error,"  said  Marshall,  "is  alleged  in 
the  proceedings  to  be  a  citizen  of  the  United  States, 
naturalized  in  Louisiana  and  residing  there.  This  is 
equivalent  to  an  averment  that  he  is  a  citizen  of  the 
United  States.  A  citizen  of  the  United  States,  residing 
in  any  State  of  the  Union,  is  a  citizen  of  that  State." 

The  whole  question  of  the  relation  between  state  and 
federal  citizenship  came  up  for  discussion  and  decision 
in  the  Dred  Scott  case  (Scott  v.  Sandford,  19  How., 
393),  decided  in  1856.  Two  of  the  questions  involved 
in  this  case  were,  whether  a  State  might  make  a  negro 
one  of  its  own  citizens,  and  if  so,  whether  such  a  one 
thereby  necessarily  became  a  citizen  of  the  United 
States  and  as  such  entitled  to  the  special  privileges 
and  immunities  created  by  the  Constitution. 

The  majority  of  the  court  held  that  though  the  in- 
dividual States  had  full  discretion  as  to  whom  they 
should  admit  to  their  own  citizenship,  they  had  not  the 
power,  by  an  exercise  of  this  right,  to  endow  with  the 
privileges  of  federal  citizenship  those  individuals  who, 
at  the  time  the  Constitution  was  adopted,  were  held  by 
law  and  general  opinion  not  qualified,  because  of  race, 
to  become  citizens.  Negroes,  it  was  declared,  were  of 
this  class.  "We  must  not  confound,"  said  Taney  in 
his  opinion,  "the  rights  of  citizenship  which  a  State 

243 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

may  confer  within  its  own  limits,  and  the  rights  of 
citizenship  as  a  member  of  the  Union.  ...  [A 
person]  may  have  all  the  rights  and  privileges  of  a 
citizen  of  a  State,  and  yet  not  be  entitled  to  the  rights 
and  privileges  of  a  citizen  in  any  other  States.  .  .  . 
Each  State  .  .  .  may  confer  them  upon  an  alien  or 
any  one  it  thinks  proper,  or  upon  any  class  or  de- 
scription of  persons,  yet  he  would  not  be  a  citizen  in 
the  sense  in  which  that  word  is  used  in  the  Constitu- 
tion of  the  United  States.  .  .  .  The  rights  which  he 
would  acquire  would  be  restricted  to  the  State  which 
gave  them.  ...  No  State  can,  by  naturalizing  an 
alien,  invest  him  with  the  rights  and  privileges  secured 
to  a  citizen  of  a  State  under  the  Federal  Government, 
although,  so  far  as  the  State  alone  is  concerned,  he 
would  undoubtedly  be  entitled  to  the  rights  of  a  citizen 
and  clothed  with  all  the  rights  and  immunities  which 
the  constitution  and  law  of  the  State  attached  to  that 
character. ' ' 

From  this  doctrine  that  a  citizen  of  a  State,  what- 
ever his  class  or  condition,  did  not  necessarily  become 
a  citizen  of  the  United  States,  Justice  Curtis  dissented. 
National  citizenship  and  state  citizenship  he  held  to 
apply  to  the  same  persons  in  all  cases,  thus,  appar- 
ently, excluding  from  federal  citizenship  inhabitants 
of  the  territories.  Furthermore,  it  would  seem  that 
he  committed  himself  to  the  doctrine  that  state  citizen- 
ship is  the  more  fundamental  as  being  the  source 
whence  federal  citizenship  is  derived.  "It  is  left  to 
each  State  to  determine,"  he  said,  "what  free  persons 
born  within  its  limits  shall  be  citizens  of  such  State 
and   thereby   be   citizens  of  the  United   States.  .  .  . 

244 


CITIZENSHIP 


Among  the  powers  unquestionably  possessed  by  the 
several  States  was  that  of  determining  what  persons 
should,  and  what  persons  should  not,  be  citizens." 

In  effect,  then,  the  Dred  Scott  decision  held  that 
free  negroes  in  the  United  States,  though  subjects 
of,  that  is,  owing  allegiance  to,  the  United  States,  were 
not  "citizens"  of  the  United  States  within  the  mean- 
ing of  that  provision  of  the  Constitution  which  pro- 
vides the  right  of  bringing  suits  in  federal  courts. 

In  1868  was  adopted  the  Fourteenth  Amendment 
which  provides  that  "All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,  are  citizens  of  the  United  States  and  of  the 
State  wherein  they  reside. ' ' 

The  two  main  purposes  of  this  declaration  undoubt- 
edly were:  (1)  the  assertion  that  national  citizenship 
is  primary  and  paramount  to  state  citizenship ;  and 
(2)  the  granting  of  both  national  and  state  citizen- 
ship to  the  negro.  That  national  citizenship  was  to  be 
paramount  is  shown  not  only  in  the  words  just  quoted, 
but  in  the  further  provision  of  the  amendment  that 
"no  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  and  immunities  of  citizens  of 
the  United  States,  nor  shall  any  State  deprive  any 
person  of  life,  liberty  or  property  without  due  process 
of  law ;  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws." 

In  the  Slaughter  House  Cases  (16  Wall.,  36)  it  was 
held,  in  effect,  that  this  amendment  did  not  have  the 
effect  of  absorbing  state  citizenship  and  its  appurte- 
nant rights  in  the  national  citizenship,  but  that  the 
two  remain  as  distinct  as  before.    Upon  this  point  the 

245 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

court  declared:  "It  [the  clause  defining  citizenship] 
declares  that  persons  may  be  citizens  of  the  United 
States  without  regard  to  the  citizenship  of  a  particular 
State,  and  it  overturns  the  Dred  Scott  decision  by 
making  all  persons  born  within  the  United  States  and 
subject  to  its  jurisdiction  citizens  of  the  United  States. 
That  its  main  purpose  was  to  establish  the  citizenship 
of  the  negro  can  admit  of  no  doubt.  The  phrase  'sub- 
ject to  its  jurisdiction'  was  intended  to  exclude  from 
its  operation  children  of  ministers,  consuls,  and  citi- 
zens or  subjects  of  foreign  States  born  within  the 
United  States.^  The  next  observation  is  more  impor- 
tant. ...  It  is,  that  the  distinction  between  citizen- 
ship of  the  United  States  and  citizenship  of  a  State 
is  clearly  recognized  and  established.  Not  only  may 
a  man  be  a  citizen  of  the  United  States  without  being 
a  citizen  of  a  State,  but  an  important  element  is  neces- 
sary to  convert  the  former  into  the  latter.  He  must 
reside  within  the  State  to  make  him  a  citizen  of  it, 
but  it  is  only  necessary  that  he  should  be  born  or 
naturalized  in  the  United  States  to  be  a  citizen  of  the 
Union.  It  is  quite  clear,  then,  that  there  is  a  citizen- 
ship of  the  United  States,  and  a  citizenship  of  a  State, 
which  are  distinct  from  each  other,  and  which  depend 
upon  different  characteristics  or  circumstances  in  the 
individual." 

In  the  above  it  will  be  noticed  that  the  court  de- 
clares that  an  additional  element  is  necessary  to  con- 

1  This  interpretation  of  the  phrase  "subject  to  its  jurisdiction  " 
was  a  mere  dictum  of  the  court,  the  point  not  being  involved  in 
the  suit  at  bar.  Moreover,  as  we  shall  see,  post,  p.  248,  it  was  an 
incorrect  dictum  so  far  as  regards  persons  born  within  the  United 
States  of  parents  who  are  aliens. 

246 


CITIZENSHIP 


vert  a  federal  citizen  into  a  state  citizen.  This 
additional  element,  it  should  also  be  observed,  is  not 
one  the  giving  or  refusing  of  which  is  within  the 
control  of  the  State.  By  the  mere  act  of  taking  up 
residence  wdthin  a  State,  which  that  State  cannot  pre- 
vent, a  federal  citizen,  ipso  facto,  becomes  a  citizen  of 
the  State.  The  State  thus  no  longer  has  any  power 
to  determine  who  shall  be  or  become  its  own  citizens. 
The  federal  Constitution  fixes  that  once  for  all. 

But  though  the  States  may  not  determine  who  shall 
constitute  its  citizen  body,  they  still  retain,  as  the  de- 
cision in  the  Slaughter  House  Cases  goes  on  to  declare, 
a  full  authority,  free  from  federal  supervision  and 
control,  to  decide  what  political  privileges— as,  for 
instance,  the  right  to  vote,  or  to  hold  office— shall  ex- 
ist, and  who  shall  be  entitled  to  enjoy  them.  Thus, 
upon  the  one  hand,  federal  and  state  citizenship  does 
not  entitle  one,  of  right,  to  the  suffrage  or  qualify  him 
for  public  office.  Upon  the  other  hand,  the  States  may 
grant,  and  in  a  number  of  cases  have  granted,  these 
privileges  to  aliens  who,  though  not  naturalized,  have 
declared  their  intention,  according  to  the  requirements 
of  the  national  law  regulating  naturalization,  of  be- 
coming United  States  citizens. 

A  State  cannot  prevent,  as  has  been  said,  a  federal 
citizen  from  becoming  one  of  its  own  citizens.  It  is 
not  certain,  however,  that  it  may  not  grant  its  own 
citizenship  to  one  not  a  federal  citizen,  or  even  to  one, 
as  for  instance  a  Mongolian,  who,  according  to  existing 
federal  law,  cannot  become  a  federal  citizen.^  This 
point  is,  however,  of  only  academic  interest,  for  whe- 

1  According  to  the  existing  laws  of  naturalization,  only  mem- 
bers of  the  white  races  and  negroes  may  be  naturalized. 

247 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

ther  made  a  state  citizen  or  not,  all  the  privileges  of 
state  citizenship  may  be  given  an  alien. 

In  the  case  of  United  States  v.  Wong  Kim  Ark  (169 
U.  S.,  649),  decided  in  1898,  was  determined  the  ques- 
tion whether,  under  the  provisions  of  the  Fourteenth 
Amendment,  one  is  a  citizen  of  the  United  States  who 
is  bom  in  the  United  States  of  alien  parents  perma- 
nently domiciled  therein.  The  determination  of  this 
point  turned  upon  the  question  whether  or  not 
American  law  follows  the  English  Common  Law 
principle  that  birth  within  the  territorial  limits  of  a 
State  makes  one  a  citizen  of  that  State,  or  accepts  the 
rule  followed  by  most  European  States  that  citizenship 
is  determined  by  that  of  the  parents.  The  Supreme 
Court  declared  that  the  first  is  the  correct  American 
principle  and  that,  therefore,  the  Chinaman,  defen- 
dant in  the  suit  being  decided,  was  an  American  citi- 
zen. The  acceptance  of  this  doctrine,  it  was  held,  does 
not  prevent  the  United  States  from  providing  that 
children  born  abroad  of  American  citizens  shall  be 
considered  citizens  of  the  United  States.^ 
Regarding  the  phrase  ''subject  to  the  jurisdiction 
1 "  Persons  heretofore  born,  or  hereafter  to  be  born,  out  of  the 
limits  and  jurisdiction  of  the  United  States,  whose  fathers  were 
or  shall  be  at  the  time  of  their  birth  citizens  of  the  United  States, 
shall  be  deemed  and  considered  and  are  hereby  declared  to  be 
citizens  of  the  United  States :  provided,  however,  that  the  rights 
of  citizenship  shall  not  descend  to  persons  whose  fathers  never 
resided  in  the  United  States."  Law  enacted  in  1855.  "Revised 
Statutes,"  Sec.  1993.  The  acceptance  by  some  nations  of  par- 
entage and  by  others  of  place  of  birth  as  determinant  of  citizen- 
ship, as  also  the  assertion  by  some  nations  and  the  denial  by 
others  as  of  a  right  of  expatriation,  gives  rise  in  many  cases  to  a 
double  citizenship.     Thus,  for  example,  the  child  born  in  the 

248 


CITIZENSHIP 


thereof"  the  court  said:  ''The  real  object  of  the  Four- 
teenth Amendment  of  the  Constitution,  in  qualifying 
the  words,  'all  persons  born  in  the  United  States'  by 
the  addition  'and  subject  to  the  jurisdiction  thereof,' 
would  appear  to  have  been  to  exclude,  by  the  fewest 
and  fittest  Avords  (besides  children  of  members  of  the 
Indian  tribes,  standing  in  a  peculiar  relation  to  the 
National  Government,  unknown  to  the  common  law), 
the  two  classes  of  cases,— children  born  of  alien  ene- 
mies in  hostile  occupation,  and  children  of  diplomatic 
representatives  of  a  foreign  State,— both  of  which,  as 
has  already  been  shown,  by  the  law  of  England  and  by 
our  own  law,  from  the  time  of  the  first  settlement  of 
the  English  colonies  in  America,  had  been  recognized 
exceptions  to  the  fundamental  rule  of  citizenship  by 
birth  within  the  country." 

United  States  of  citizens  of  a  State  that  holds  that  the  citizen- 
ship of  the  child  is  fixed  by  that  of  its  parents,  is  claimed  as  a 
citizen  both  by  the  United  States  and  by  the  foreign  State  whose 
citizens  the  parents  are.  A  similar  result  follows  when  by  natu- 
ralization American  citizenship  is  conferred  upon  the  subject  of 
a  foreign  State  that  does  concede  to  its  subjects  the  right  of  ex- 
patriation. 


249 


CHAPTER   XVI 

THE  POLITICAL   STATUS   OF   INDIANS 

The  status  of  the  Indians,  to  which  allusion  is  made 
in  the  foregoing  quotation,  needs  explanation,  not  only 
because  of  its  peculiar  character,  but  because  the  con- 
stitutional principles  that  have  been  declared  to  gov- 
ern the  Federal  Government  in  its  control  of  these 
aborigines  may  find  an  application  in  the  near  future 
in  the  government  by  the  United  States  of  the  less 
civilized  tribes  inhabiting  its  newly  acquired  insular 
possessions. 

The  only  references  made  by  the  Constitution  to  the 
Indians  are  in  the  provisions  that  "Indians  not  taxed" 
shall  not  be  counted  in  determining  the  number  of 
Representatives  to  which  a  State  shall  be  entitled 
(Art.  I,  Sec.  2)  ;  and  that  Congress  shall  have  the 
power  to  regulate  commerce  with  Indian  tribes  (Art. 
I,  Sec.  8,  Clause  3). 

Since  the  adoption  of  the  present  Constitution,  In- 
dians, resident  within  the  boundaries  of  the  United 
States,  while  considered  as  absolutely  and  exclusively 
subject  to  its  sovereignty  so  far  as  concerns  both  for- 
eign powers  and  the  individual  States  of  the  Union, 
have  nevertheless  been  treated  for  many  purposes  as 
constituting  independent  nations  or  tribes  under  the 

250 


THE    POLITICAL   STATUS   OF   INDIANS 

protection  of  the  Federal  Governineiil,  and  therefore 
to  be  dealt  with  by  means  of  treaties  rather  than  by 
statutes.^  Until  recently  they  have  been  allowed  to 
govern  themselves  in  most  matters  by  their  own  tribal 
governments. 

In  Worcester  v.  Georgia  (6  Pet.,  515),  decided  in 
1832,  Chief  Justice  Marshall  said:  "The  treaties  and 
laws  of  the  United  States  contemplate  the  Indian  ter- 
ritory as  completely  separated  from  that  of  the  States, 
and  provide  that  all  intercourse  with  them  shall  be 
carried  on  exclusively  by  the  government  of  the 
Union."  Speaking  of  the  Indians  over  whose  lands 
the  State  of  Georgia  had  attempted  to  exercise  juris- 
diction,- he  said:  "The  Cherokee  Nation,  then,  is  a 
distinct  community,  occupying  its  own  territory,  with 
boundaries  accurately  described,  in  which  the  laws  of 
Georgia  can  have  no  force,  and  which  the  citizens 
of  Georgia  have  no  right  to  enter,  but  with  the  assent 
of  the  Cherokees  themselves,  or  in  conformity  with 
treaties,  and  with  the  acts  of  Congress.  The  whole  in- 
tercourse between  the  United  States  and  this  nation  is, 
by  our  Constitution  and  laws,  vested  in  the  govern- 
ment of  the  United  States." 

In  1884  in  the  case  of  Elk  v.  Wilkins  (112  U.  S.,  94) 
the  question  arose  whether  an  Indian,  born  a  member 
of  one  of  the  Indian  tribes  within  the  United  States, 
became  a  citizen  of  the  United  States  under  the  Four- 

1  In  its  control  of  the  Indians,  whether  by  means  of  statutes 
or  treaties,  Congress  has  never  been  held  bound  bj'  any  of  the 
limiting  clauses  of  the  Constitution. 

2  These  lands  were  within  the  territorial  limits  of  the  State  of 
Georgia. 

251 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

teenth  Amendment,  by  reason  of  his  birth  within  the 
United  States,  and  of  his  afterward  voluntarily  sepa- 
rating himself  from  his  tribe  and  taking  up  a  resi- 
dence among  white  citizens.  In  declaring  that  he  did 
not,  the  Court  said  : 

"Under  the  Constitution  of  the  United  States,  as 
originally  established,  'Indians  not  taxed'  were  ex- 
cluded from  the  persons  according  to  whose  numbers 
representatives  and  direct  taxes  were  apportioned 
among  the  several  States;  and  Congress  had  and  ex- 
ercised the  power  to  regulate  commerce  with  the  In- 
dian tribes,  and  the  members  thereof,  whether  within 
or  without  the  boundaries  of  one  of  the  States  of  the 
Union.  The  Indian  tribes,  being  within  the  territorial 
limits  of  the  United  States,  were  not,  strictly  speaking, 
foreign  States;  but  they  were  alien  nations,  distinct 
political  communities,  with  whom  the  United  States 
might  and  did  deal  as  they  saw  fit,  either  through 
treaties  made  by  the  President  and  Senate,  or  through 
acts  of  Congress  in  the  ordinary  forms  of  legislation. 
The  members  of  those  tribes  owed  immediate  allegiance 
to  their  several  tribes  and  were  not  part  of  the  people 
of  the  United  States.  They  were  in  a  dependent  con- 
dition, a  state  of  pupilage,  resembling  that  of  a  ward 
to  his  guardian.  Indians  and  their  property,  exempt 
from  taxation  by  treaty  or  statute  of  the  United 
States,  could  not  be  taxed  by  any  State.  General  acts 
of  Congress  did  not  apply  to  Indians,  unless  so  ex- 
pressed as  clearly  to  manifest  an  intention  to  include 
them.  .  .  .  The  alien  and  dependent  condition  of  the 
members  of  the  Indian  tribes  could  not  be  put  off  at 
their  own  will,  without  the  action  of,  or  assent  of  the 

252 


THE   POLITICAL    STATUS   OF   INDIANS 


United  States,  they  were  never  deemed  citizens  of  the 
United  States,  except  under  explicit  provisions  of 
treaty  or  statute  to  that  effect,  either  declaring  a  cer- 
tain tribe,  or  such  members  of  it  as  chose  to  remain 
behind  on  the  removal  of  the  tribe  westward,  to  be 
citizens,  or  authorizing  individuals  of  particular  tribes 
to  become  citizens  on  application  to  a  court  of  the 
United  States  for  naturalization,  and  satisfactory 
proof  of  fitness  for  civilized  life.  .  .  .  Indians  born 
within  the  territorial  limits  of  the  United  States,  mem- 
bers of,  and  owing  immediate  allegiance  to,  one  of  the 
Indian  tribes  (an  alien,  though  dependent  power),  al- 
though in  a  geographical  sense  born  in  the  United 
States,  are  no  more  'born  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,'  within  the  mean- 
ing of  the  first  section  of  the  Fourteenth  Amendment, 
than  the  children  of  subjects  of  any  foreign  govern- 
ment born  within  the  domain  of  that  government,  or 
the  children,  born  within  the  United  States,  of  ambas- 
sadors or  other  public  ministers  of  foreign  nations.  .  .  . 
Such  Indians,  then,  not  being  citizens  by  birth,  can 
only  become  citizens  in  the  second  way  mentioned  in 
the  Fourteenth  Amendment,  by  being  'naturalized 
in  the  United  States'  by  or  under  some  treaty  or 
statute." 

Since  the  decision  of  the  Supreme  Court  in  Elk  v. 
Wilkins  a  number  of  acts  of  Congress  have  been  passed 
which  have  had  the  effect  of  destroying,  to  a  very  con- 
siderable extent,  the  autonomous  tribal  governments 
of  the  Indians  and  of  subjecting  them  to  the  legisla- 
tive control  of  Congress  instead  of  to  that  of  the 
treaty-making  power.     The  way  was  opened  to  this 

253 


THE   AMERICAN    CONSTITUTIONAL   SYSTEM 

change  by  a  ''rider"  attached  to  an  appropriation  bill 
in  1891  which  provided  that  "No  Indian  nation  or 
tribe  within  the  territory  of  the  United  States  shall  be 
acknowledged  or  recognized  as  an  independent  nation, 
tribe  or  power  with  whom  the  United  States  may 
contract  by  treaty." 

By  an  act  passed  in  1885  the  federal  courts  were, 
for  the  first  time,  given  a  considerable  jurisdiction 
over  crimes  committed  upon  reservations  by  Indians 
upon  Indians.  The  constitutionality  of  this  act  was 
attacked  upon  the  ground  that  it  was  not  within  the 
legislative  power  of  Congress  thus  to  interfere  with 
the  internal  legal  affairs  of  Indians  still  maintaining 
tribal  governments.  The  Court  held,  however,  in 
United  States  v.  Kagama  (118  U.  S.,  375),  that  what- 
ever political  and  legal  freedom  was  enjoyed  by  the 
Indians  was  by  way  of  permission  or  cession  from  the 
Federal  Government,  and  was,  therefore,  subject  to 
curtailment  or  complete  withdrawal  by  that  power. 
' '  These  Indian  tribes, ' '  it  declared,  ' '  are  the  wards  of 
the  Nation.  They  are  communities  dependent  on  the 
United  States,  dependent  largely  for  their  daily  food, 
dependent  for  their  political  rights.  They  owe  no 
allegiance  to  the  States  and  receive  from  them  no  pro- 
tection." 

To  this  decision  the  objection  was  urged,  and,  it 
would  seem,  with  considerable  force,  that  since  the 
Indians  are  no  longer  permitted  to  enjoy  tribal  auton- 
omy, and  are  no  longer  treated  by  the  Federal 
Government  as  independent  communities  which  are 
to  be  dealt  with  by  treaties  instead  of  statutes,  there 
disappears  the  constitutional  justification  for  denying 

254 


THE   POLITICAL   STATUS   OF   INDIANS 

to  the  States  the  control  of  such  of  them  as  live  within 
their  territorial  limits.  To  this  the  Supreme  Court 
had  no  better  answer  to  give  than  expediency— always 
a  poor,  if  not  an  absolutely  invalid  argument.  "The 
power  of  the  General  Government  over  these  remnants 
of  a  race  once  powerful,  now  weak  and  diminished  in 
numbers,"  it  said,  "is  necessary  to  their  protection,  as 
well  as  to  the  safety  of  those  among  whom  they 
dwell."  Upon  this  argument  the  exclusive  jurisdic- 
tion of  the  Federal  Government  over  the  negroes  might 
be  justified. 

At  various  times  during  past  years,  Congress  has 
declared,  as  to  particular  Indian  tribes,  that  their 
lands  should  be  divided  and  held  in  severalty  by  their 
respective  members,  and  that,  thereupon,  such  Indians 
should  become  citizens  of  the  United  States,  and  pass 
immediately  from  the  exclusive  jurisdiction  of  the 
Federal  Government  to  that  of  the  States  in  which 
they  reside.  In  1887,  by  the  General  Land  in  Sev- 
eralty Law,  known  as  the  ' '  Dawes  Act, ' '  the  President 
was  given  the  power  to  apply  this  process  to  practi- 
cally every  Indian  reservation  in  the  country.  The 
peculiarity  of  these  acts  is,  it  will  be  observed,  that  it 
makes  citizens  of  Indians  against  their  will.  The 
action  is  taken  at  the  discretion  of  the  President  and 
citizenship  is  the  result.^ 

iThe  Dawes  Act  also  provides  for  allotments  of  land  and^cit- 
izenship  to  Indians  who  may  wish  to  settle  upon  the  public  lands 
of  the  United  States.  It  also  declares  that  all  Indians  forsaking 
their  tribal  life  and  adopting  the  habits  of  civilized  life  shall  be- 
come citizens.  Without  this  express  statutory  provision,  as  was 
decided  in  Elk  v.  Wilkins,  citizenship  could  not  thus  be  obtained. 

255 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


For  legislation  further  subjecting  the  Indians  to  the  control  of 
the  federal  courts,  see  the  act  of  January  1,  1898. 

The  peculiar  status  of  those  Indians  who  have  not  become 
citizens  is  illustrated  in  the  form  of  a  letter  of  protection  issued, 
in  lieu  of  a  passport,  to  those  traveling  abroad.  The  following 
is  a  letter  issued  by  our  consul  at  Odessa,  the  form  of  which  has 
been  approved  by  the  State  Department : 

' '  To  whom  it  may  concern  : 

"The  bearer  of  this  document  is  a  North  American  Indian 
whose  name  is  Hampa.  This  Indian  is  a  ward  of  the  United 
States,  and  is  entitled  to  the  protection  of  its  consular  and 
other  officials.  He  is  not,  however,  entitled  to  a  passport,  as  he 
is  not  a  citizen  of  the  United  States.  This  consulate  has  the 
honor  to  request  the  Russian  authorities  to  grant  Hampa  all 
necessary  protection  during  his  stay  in  Eussia,  and  grant  him 

permission  to  depart  when  he  requires  it. 

ii 

"Consul." 


256 


CHAPTER  XVII 

THE  CITIZENSHIP  OF  INHABITANTS  OF  CEDED  TERRITORIES 

Whether  or  not  the  inhabitants  of  territories  ceded 
by  one  nation  to  another  necessarily  have,  according 
to  the  principles  of  International  Law,  the  option  of 
becoming  citizens  of  the  annexing  State,  or  retaining 
their  old  citizenship,  is  a  point  upon  which  Inter- 
national Law  writers  do  not  seem  to  be  fully  agreed. 
Rivier,  for  instance,  in  his  recent  work,  "Principes  du 
Droit  des  Gens,"  declares  that  they  have  not — that 
unless  expressly  provided  otherwise,  they  become, 
nolens  volens,  the  subjects  of  the  power  to  which  their 
territory  is  united.  Other  text-book  writers,  West- 
lake  and  Halleck,  for  instance,  claim  that  the  treaty 
of  cession  being  silent  upon  this  point,  an  option 
exists.^  Halleck  declares:  "The  transfer  of  territory 
establishes  its  inhabitants  in  such  a  position  toward 
the  new  sovereignty  that  they  may  elect  to  become,  or 
not  to  become,  its  subjects.  Their  obligations  to  the 
former  government  are  canceled,  and  they  may  or 

1  This  right  of  option  as  regards  citizenship  is  not  to  be  eon- 
founded  with  the  right,  by  some  alleged  to  exist,  of  the  inhabi- 
tants to  decide  whether  or  not  they  will  consent  to  a  transfer  of 
sovereignty  over  their  territory  to  another  power.  Such  a  right 
has  never  been  accepted  by  International  Law  writers,  nor  rec- 
ognized by  the  United  States  in  any  of  the  annexations  by  it 
of  new  territories. 

"  257 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

may  not,  become  the  subjects  of  the  new  government, 
according  to  their  own  choice.  If  they  remain  in  the 
territory  after  this  transfer,  they  are  deemed  to  have 
elected  to  become  its  subjects,  and  thus  to  have  con- 
sented to  the  transfer  of  their  allegiance  to  the  new 
sovereignty.  If  they  leave,  sine  animo  revertendi^they 
are  deemed  to  have  elected  to  continue  aliens  to  the 
new  sovereignty.  The  status  of  the  inhabitants  of  the 
conquered  and  transferred  territory  is  thus  deter- 
mined by  their  own  acts.  This  rule  is  the  most  just, 
reasonable,  and  convenient  which  could  be  adopted. 
It  is  reasonable  on  the  part  of  the  conqueror,  who  is 
entitled  to  know  who  become  his  subjects  and  who 
prefer  to  continue  aliens;  it  is  very  convenient  for 
those  who  wish  to  become  the  subjects  of  the  new 
State,  and  is  not  unjust  toward  those  who  determine 
not  to  become  its  subjects.  According  to  this  rule, 
domicile,  as  understood  and  defined  in  public  law, 
determines  the  question  of  transfer  of  allegiance,  or 
rather,  is  the  rule  of  evidence  by  which  that  question 
is  to  be  decided." 

That,  in  the  absence  of  treaty  stipulations  to  the 
contrary,  the  citizenship  of  the  inhabitants  of  ceded 
territory  is  to  be  determined  by  the  rule  thus  stated,  is 
generally  admitted  by  American  International  Law 
writers,  and  has  been  more  than  once  declared  by  the 
United  States  Supreme  Court.  In  American  Insur- 
ance Co.  V.  Canter,  the  Court  said:  "The  same  act 
M'hich  transferred  their  territory  transfers  the  allegi- 
ance of  those  who  remain  in  it;"  and  in  Boyd  v. 
Thayer  (143  U.  S.,  135)  it  was  declared  that  "the 
nationality  of  the  inhabitants  of  territory  acquired  by 

258 


CITIZENSHIP   IN   TERRITORIES 


conquest  or  cession  becomes  that  of  the  government 
under  whose  dominion  they  pass,  subject  to  the  right 
of  election  on  their  part  to  retain  their  former  na- 
tionality by  removal  or  otherwise  as  may  be  pro- 
vided.'' 

In  all  the  treaties  entered  into  by  the  United  States 
whereby  territory  was  acquired,  prior  to  that  of  1899 
with  Spain,  it  was  provided  either  that  the  inhabitants 
of  the  ceded  territories  remaining  therein  should  be 
admitted  as  soon  as  possible  to  the  enjoyment  of  all 
the  rights,  advantages,  and  immunities  of  citizens  of 
the  United  States,  or  that  they  should  be  "incorpo- 
rated in  the  Union  of  the  United  States,"  or  both.  It 
cannot,  however,  be  said  with  certainty  as  has  been 
maintained  by  some,  that  it  was  due  to  these  provisions 
that  the  inhabitants  of  the  ceded  territories  were 
collectively  naturalized,  for  this  point  has  never  been 
squarely  passed  upon  by  the  Supreme  Court.  The  un- 
doubted purpose  and  the  probable  legal  effect  of  these 
provisions  was  only  to  create  an  obligation  on  the  part 
of  the  United  States  not  to  discriminate  civilly  against 
these  peoples,  and,  when  the  conditions  should  war- 
rant, to  confer  upon  them  full  political  privileges. 
The  determination  when  this  time  had  arrived  was  left 
to  the  discretion  of  Congress.  Provisions  similar  to 
those  of  which  we  have  been  speaking  are  almost 
always  inserted  by  all  nations  in  treaties  of  cession  at 
the  instance  of  the  ceding  power,  as  a  mere  matter  of 
equity,  it  being  but  just,  in  handing  over  to  the  con- 
trol of  another  power  citizens  of  its  own,  that,  as 
far  as  possible,  a  State  should  obtain  a  guarantee  that 
they  shall  not  be  civilly  or  politically  oppressed. 

259 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

By  these  treaties  of  cession  entered  into  by  the 
United  States,  the  inhabitants  of  the  ceded  territories 
did  become,  however.  United  States  citizens  under  the 
general  rule  quoted  above,  because  those  treaties  con- 
tained no  stipulations  to  the  contrary. 

In  the  treaty  of  peace  with  Spain  which  provided 
for  the  cession  to  the  United  States  of  Porto  Rico, 
Guam,  and  the  Philippines,  we  find  for  the  first  time 
appearing  a  provision  affirming,  in  effect,  that  the 
cession  of  the  islands  was  not  to  operate  as  a  naturali- 
zation of  their  native  inhabitants,  but  that  the  deter- 
mination of  their  civil  rights  and  political  status  was 
to  be  left  to  the  subsequent  judgment  of  Congress. 
Spanish  subjects,  natives  of  the  Iberian  Peninsula,  but 
resident  in  the  islands,  were,  however,  given  the  right 
to  elect  whether  or  not  they  would  retain  their  old 
citizenship  or  become  American  subjects.     The  pro- 
visions of  the  treaty  upon  these  points  were  as  follows : 
"Spanish  subjects, natives  of  the  Peninsula  [of  Spain] 
residing  in  the  territory  over  which  Spain  by  the  pres- 
ent treaty  relinquishes  or  cedes  her  sovereignty,  may 
remain  in  such  territory  or  may  remove  therefrom,  re- 
taining in  either  event  all  their  rights  of  property,  in- 
eluding  the  right  to  sell  or  dispose  of  such  property 
or  of  its  proceeds;  and  they  shall  also  have  the  right 
to  carry  on  their  industry,  commerce,  and  professions, 
being  subject  in  respect  thereof  to  such  laws  as  are 
applicable  to  other  foreigners.    In  case  they  remain  in 
the  territory  they  may  preserve  their  allegiance  to 
the  Crown  of  Spain  by  making,  before  a  court  of 
record,  within  a  year  from  the  date  of  the  exchange  of 
ratifications  of  this  treaty,  a  declaration  of  their  de- 

260 


CITIZENSHIP   IN   TERRITORIES 


cision  to  j)roserve  such  allegiance;  in  default  of  which 
declaration  they  shall  be  held  to  have  renounced  it  and 
to  have  adopted  the  nationality  of  the  territory  in 
which  they  may  reside. 

"The  civil  right  and  political  status  of  the  native 
inhabitants  of  the  territories  hereby  ceded  to  the 
United  States  shall  be  determined  by  Congress." 

Relative  to  the  effect  of  this  last  treaty  provision, 
a  question  presents  itself,  which  has  not  yet  been 
passed  upon  by  the  Supreme  Court.  This  is,  whether 
it  is  within  the  constitutional  competence  of  the  treaty- 
making  power  to  confer  upon  Congress  the  right  to 
determine  whether  or  not  the  inhabitants  of  territories 
coming  under  the  sovereignty  of  the  United  States 
shall  become  its  citizens.  The  Constitution  declares 
that  the  acts  of  the  treaty-making  power,  as  well  as 
those  of  the  federal  legislature,  shall  be  the  supreme 
law  of  the  land.  The  validity  of  both  are,  however, 
dependent  upon  their  consonance  with  the  require- 
ments of  the  Constitution.  If,  then,  according  to  that 
instrument,  there  may  not  be  subjects  of  the  United 
States  who  are  not  also  its  citizens,  no  treaty  can  give 
to  the  law-making  branch  the  power  to  treat  any  per- 
sons as  such.  In  the  Insular  Cases  it  was  held  that  the 
islands  obtained  from  Spain  have  not  been  incorpo- 
rated into  the  "United  States."  Their  inhabitants 
have  not  been  naturalized  by  statute  and  the  treaty 
with  Spain  expressly  refuses  to  them  citizenship.  The 
whole  question  of  their  civil  status  thus  depends  upon 
whether  or  not  they  are  citizens  according  to  the  pro- 
vision of  the  Fourteenth  Amendment  which  declares 
that  "all  persons  born  or  naturalized  in  the  United 

261 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


States,  and  subject  to  the  jurisdiction  thereof,  are  citi- 
zens of  the  United  States  and  of  the  State  wherein 
they  reside."  That  is  to  say,  it  will  depend  upon 
whether  the  terra  "United  States,"  as  employed  in 
this  amendment,  will  be  construed  to  exclude  or  in- 
clude "unincorporated"  territories. 

In  the  case  of  Gonzales  v.  Williams  (24  Sup.  Ct. 
Reporter,  177),  decided  January  4,  1904,  the  Supreme 
Court  held  that  inasmuch  as,  since  the  treaty  of  ces- 
sion with  Spain,  the  island  of  Porto  Rico  had  ceased 
to  be  foreign  territory,  natives  living  there  in  1899  are 
not  "aliens"  within  the  meaning  of  that  term  as  em- 
ployed in  the  act  of  -Congress  providing  for  the  deten- 
tion and  deportation  of  alien  immigrants  likely  to  bo- 
come  public  charges.  Whether  or  not  such  persons, 
though  subject  to  the  sovereignty  of  the  United  States, 
are  its  citizens  within  the  narrower  constitutional 
sense,  so  long  as  the  island  remains  unincorporated 
into  the  United  States,  was  not  passed  upon. 

As  regards  those  of  the  natives  of  the  Philippine 
Islands,  who  are  ^ill  uncivilized  and  maintain  tribal 
relations,  it  may  be  that  the  courts  will  construe  their 
status  to  be  similar  to  that  of  the  Indian  tribes  in  the 
United  States. 


262 


CHAPTER  XVIII 


ADMISSION  OF  NEW  STATES 


The  process  of  admitting  new  States  to  the  Ameri- 
can Union  is  a  comparatively  simple  process  and  but 
few  constitutional  questions  have  arisen  in  connection 
with  it.  The  constitutional  clause  governing  the  sub- 
ject reads  as  follows:  "New  States  may  be  admitted 
by  the  Congress  into  this  Union ;  but  no  new  State 
shall  be  formed  or  erected  within  the  jurisdiction  of 
any  other  State,  nor  any  State  be  formed  by  the  junc- 
tion of  two  or  more  States  or  parts  of  States,  without 
the  consent  of  the  legislatures  of  the  States  concerned 
as  well  as  of  Congress"  (Art.  IV,  Sec.  3).  It  will  thus 
be  seen  that  nothing  is  said  as  to  the  conditions  that 
must  be  met  by  a  given  territory  before  it  may  claim, 
or  Congress  be  obligated  to  grant,  admission  to  the 
Union  as  a  State.  The  whole  matter  is  left  absolutely 
to  the  discretion  of  Congress.  There  can  be  no  ques- 
tion but  that  at  the  time  of  the  adoption  of  the  Con- 
stitution the  idea  was  generally  held  that  all  non-state 
territory  held  or  to  be  held  by  the  United  States  was 
to  be  regarded  as  material  from  which  new  States  were 
to  be  created  as  soon  as  population  and  material  de- 
velopment should  warrant.  But  no  attempt  was  made 
to  force  the  hand  of  Congress  under  circumstances 

263 


THE  AMERICAN   CONSTITUTIONAL  SYSTEM 


that  could  not  be  foreseen  by  defining  in  the  Constitu- 
tion itself  the  conditions  under  which  statehood  should 
be  accorded.  But  one  limitation  is  laid  down,  and  that 
impliedly,  and  one  that  relates  rather  to  the  status  of 
new  States  after  admission,  than  to  the  process  of  ad- 
mission itself.  This  is  that  the  new  Commonwealths, 
when  received  into  constitutional  fellowship  with  the 
older  members  of  the  Union,  shall  stand  upon  an  ex- 
actly equal  footing  with  them.  The  Constitution  does 
not  expressly  declare  this,  but,  without  distinguishing 
between  the  original  and  the  new  States,  defines  the 
political  privileges  which  the  States  are  to  enjoy,  and 
declares  that  all  powers  not  granted  to  the  United 
States  shall  be  considered  as  reserved  "to  the  States." 
From  this  it  almost  irresistibly  follows  that  Congress 
has  not  the  right  to  provide  that  certain  members  of 
the  Union,  possessing  full  statehood,  shall  have  their 
constitutional  competences  in  any  manner  less  than 
that  of  their  sister  States.  According  to  this,  then, 
though  Congress  may  exact  of  territories  whatever 
conditions  it  sees  fit  as  requirements  precedent  to  their 
admission  as  States,  when  admitted  as  such,  it  cannot 
deny  to  them  any  of  the  privileges  and  immunities 
which  the  other  Commonwealths  enjoy. ^ 

This  principle  of  the  equality  of  States  had  its  ori- 
gin before  the  adoption  of  the  Constitution  itself.  In 
the  acts  of  cession  by  the  several  States  by  which  the 
old  Confederacy  obtained  the  control  of  the  Northwest 
Territory,  it  was  provided  that  from  this  vast  area  new 
States  should,  from  time  to  time,  be  organized,  which 

1  See  Pollard's  Lessee  v.  Hagan,  3  How.,  212 ;  Strader  v.  Gra- 
ham, 10  How.,  82  ;  Weber  v.  Harbor  Commissioners,  18  Wall.,  57. 

264 


ADMISSION   OF  NEW   STATES 


should  be  admitted  to  the  Confederacy  with  the  same 
sovereign  rights  enjoyed  by  the  other  States. 

The  famous  Northwest  Ordinance  of  1787,  reenacted 
by  the  Congress  of  the  United  States  in  1789,  after 
laying  down  the  general  conditions  upon  which  state- 
hood was  to  be  accorded,  declared  that  the  States,  so 
admitted,  should  be  "on  an  equal  footing  with  the 
original  States  in  all  respects  whatever. ' ' 

Notwithstanding,  however,  this  requirement  of 
equality.  Congress  at  an  early  date  began  the  practice 
of  exacting  from  would-be  States  various  promises  by 
the  terms  of  which  they  were  to  hold  themselves  bound 
after  their  admission  to  the  Union  and  until  Congress 
should  release  them.  Thus,  for  instance,  beginning  in 
1802  with  Ohio,  the  first  State  formed  from  the  North- 
west Territory,  it  was  demanded  by  Congress  that  that 
State,  when  admitted,  should  pass  an  ordinance,  ir- 
revocable without  the  consent  of  Congress,  not  to  tax 
for  five  years  all  public  lands  sold  by  the  United 
States;  and  a  requirement  substantially  similar  was 
demanded  of  many  of  the  States  later  formed.  When 
Missouri  was  admitted  in  1821  it  w-as  required  to  de- 
clare that  its  constitution  should  never  be  so  construed 
as  to  permit  its  legislature  to  pass  a  law  excluding 
citizens  of  other  States  from  the  enjoyment  of  any  of 
the  privileges  and  immunities  granted  them  by  the 
federal  Constitution.^ 

Beginning  wath  the  admission  of  Nevada  in  1864, 
the  promises  exacted  of  territories  seeking  admission 

1  A  superfluous  requirement,  for  with  or  without  such  a  prom- 
ise, a  State  is,  and  was  then,  constitutionally  unable  to  deprive 
any  one  of  rights  granted  by  the  federal  Constitution. 

265 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

as  States  assumed  a  more  political  character.  Of 
Nevada  it  was  required  that  her  constitution  should 
harmonize  with  the  Declaration  of  Independence  and 
that  the  right  to  vote  should  not  be  denied  persons  on 
account  of  their  color.  Of  Nebraska,  admitted  in 
1867,  it  was  demanded  that  there  should  be  no  denial 
of  the  franchise  or  any  other  right  on  account  of  race 
or  color,  Indians  excepted.  Of  the  States  that  had  at- 
tempted secession,  still  more  radical  were  the  require- 
ments precedent  to  the  granting  to  them  of  permission 
again  to  enjoy  the  other  rights  which  they  had  for  the 
time  being  forfeited.  Of  all  of  them  it  was  required 
that  there  should  be,  by  their  laws,  no  denial  of  the 
right  to  vote  except  for  crime ;  and  of  three,  that  ne- 
groes should  not  be  disqualified  from  holding  office,  or 
be  discriminated  against  in  the  matter  of  school  privi- 
leges.^ Finally,  Utah,  when  admitted  as  a  State  in 
1894,  was  required  by  Congress  by  the  Enabling  Act 
to  make  "by  ordinance  irrevocable  without  the  con- 
sent of  the  United  States  and  the  people  of  the  United 
States,  provisions  for  perfect  religious  toleration  and 
for  the  maintenance  of  public  schools  free  from  sec- 
tarian control;  and  that  polygamous  or  plural  mar- 
riages are  forever  prohibited." 

In  two  comparatively  recent  cases,  the  Supreme 
Court  has  emphatically  declared  that,  after  becoming 
a  member  of  the  Union,  a  State  is  not  restrained  by 
political  limitations  exacted  of  it  at  the  time  of,  and  as 
a  condition  precedent  to,  its  admission  to  the  Union 

1  By  the  adoption  of  the  Fourteenth  and  Fifteenth  Amend- 
ments, some  of  these  limitations  have  been  made  applicable  to 
all  the  States  and  thus  an  equality,  as  to  them,  created. 

266 


ADMISSION   OF  NEW  STATES 


as  a  State.  In  Eseanaba  v.  Lake  Michigan  Transspor- 
tation  Co.  (107  U.  S.,  678)  the  Court  declared,  rela- 
tive to  certain  limitations  placed  upon  the  governing 
powers  of  Illinois  while  in  a  territorial  condition : 
"Whatever  the  limitation  upon  her  powers  as  a  gov- 
ernment whilst  in  a  territorial  condition,  whether 
from  the  Ordinance  of  1789  or  the  legislation  of  Con- 
gress, it  ceased  to  have  any  operative  force,  except  as 
voluntarily  adopted  by  her  after  she  became  a  State 
of  the  Union.  On  her  admission,  she  at  once  became 
entitled  to  and  possessed  of  all  the  rights  of  dominion 
and  sovereignty  which  belonged  to  the  original  States. 
She  was  admitted  and  could  be  admitted  only  on  the 
same  footing  with  them."  And  in  Bolln  v.  Nebraska 
(176  U.  S.,  83)  it  was  declared :  "This  Court  has  held 
in  many  cases  that,  whatever  be  the  limitations  upon 
the  power  of  a  territorial  government,  they  cease 
to  have  any  operative  force,  except  as  volun- 
tarily adopted  after  such  territory  has  become  a 
State  of  the  Union.  Upon  the  admission  of  a  State  it 
becomes  entitled  to  and  possesses  all  the  rights 
of  dominion  and  sovereignty  which  belong  to  the 
original  States,  and,  in  the  language  of  the  act  of  1867 
admitting  the  State  of  Nebraska,  it  stands  'upon  an 
equal  footing  with  the  original  States  in  all  respects 
whatsoever.'  " 

In  the  foregoing  cases  reference  was  had,  as  ap- 
pears from  the  quotations,  to  States  created  out  of 
territories.  There  would  seem  to  be,  however,  no 
reason  why  the  same  doctrine  should  not  be  applied 
to  the  political  limitations  exacted  of  a  number  of 
the  southern  States  at  the  time  of  their  readmission 

267 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


to  full  constitutional  privileges  after  the  period  of 
Civil  War  and  Reconstruction.^ 

In  the  case  of  Stearns  v.  Minnesota  (179  U.  S.,  223), 
it  was  held,  however,  that  a  Commonwealth,  at  the  time 
of  its  admission,  or  at  any  other  time,  might  enter  into 
compacts  as  to  property  rights  with  the  United  States, 
which  would  continue  binding  upon  it.  Relative  to  a 
covenant  required  of  and  entered  into  by  Minnesota 
at  the  time  of  her  admission  as  a  State  not  to  tax 
land  belonging  to  the  United  States,  or  to  tax  non- 
resident higher  than  resident  purchasers  of  it,  the 
Court  said:  "That  these  provisions  of  the  enabling 
act  and  the  Constitution  [of  Minnesota]  in  form  at 
least,  made  a  compact  between  the  United  States  and 
the  State,  is  evident.  In  an  inquiry  as  to  the  validity 
of  such  a  compact  this  distinction  must  at  the  outset 
be  noticed.  There  may  be  agreements  or  compacts  at- 
tempted to  be  entered  into  between  the  States,  or  be- 
tween a  State  and  the  Nation,  in  reference  to 
political  rights  and  obligations,  and  there  may 
be  those  solely  in  reference  to  property  belong- 
ing to  one  or  the  other.  That  different  considera- 
tions may  underlie  the  question  of  the  validity  of 
these  two  kinds  of  agreements  is  obvious.  It  has  often 
been  said  that  a  State  admitted  into  the  Union  enters 
therein  in  full  equality  with  all  the  others,  and  such 
equality  may  forbid  any  agreement  or  compact  limit- 
ing or  qualifying  political  rights  and  obligations; 
whereas,  on  the  other  hand,  a  mere  agreement  in  ref- 
erence to  property  involves  no  question  of  equality  of 

1 A  case  involving  this  point  has  recently  been  argued  before 
the  Supreme  Court,  and  has  not  yet  [1904]  been  decided. 

268 


ADMISSION  OF   NEW  STATES 


status  but  only  of  the  power  of  a  State  to  deal  with 
the  Nation  or  with  any  other  State  in  reference  to 
such  property.  The  case  before  us  is  one  involving 
simply  an  agreement  as  to  property  between  a  State 
and  the  Nation,  That  a  State  and  the  Nation  are  com- 
petent to  enter  into  an  agreement  of  such  a  nature 
with  one  another  has  been  affirmed  in  past  decisions 
of  this  court,  and  that  they  have  been  frequently  made 
in  the  admission  of  new  States,  as  well  as  subsequently 
thereto,  is  a  matter  of  history." 

As  has  been  seen,  the  Constitution  does  not  attempt 
to  fix  the  modus  operandi  in  which  new  members  are 
to  be  admitted  into  the  Union.  It  does  not  even  say 
whether  they  are  to  be  formed  from  territory  already 
under  its  sovereignty,  and  in  one  instance,  that  of 
Texas,  a  new  State  was  received  by  the  direct  process 
of  incorporating,  by  a  joint  resolution  of  Congress,  a 
foreign,  independent  State.  In  all  other  cases,  how- 
ever, new  States  have  been  formed  from  areas  already 
belonging  to  the  United  States  and  organized  as  terri- 
tories. 

The  usual  process  by  which  these  territories  obtain 
statehood  is  as  follows :  The  people  of  a  territory  peti- 
tion Congress  to  grant  them  statehood.  If  that  body 
is  favorably  disposed,  a  so-called  "enabling  act"  is 
passed,  authorizing  the  framing  of  a  state  constitution, 
prescribing  the  manner  in  which  it  shall  be  framed, 
and  laying  down  certain  requirements  that  must  be 
met.  All  these  conditions  having  been  met,  a  resolu- 
tion reciting  this  fact  is  passed  by  Congress,  and  the 
territory  declared  a  State  and  admitted  as  such  into 
the  Union.    In  some  cases  the  final  step  in  the  process 

269 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

has  been  a  Proclamation  issued  by  the  President  in 
obedience  to  the  direction  of  Congress. 

The  above  has  been  the  usual  and  regular  process. 
In  not  a  few  instances,  however,  the  inhabitants  of 
territories  have  met  in  conventions  and-  framed  con- 
stitutions without  first  obtaining  the  authorization  of 
Congress.  The  acceptance,  however,  by  that  body,  of 
the  instrument  framed  has  been  considered  sufficient 
to  validate  the  proceeding. 

There  has  been  some  little  constitutional  speculation 
as  to  whether  the  decisive,  creative  act  in  the  bringing 
into  existence  of  a  new  State  is  the  Resolution  of  Con- 
gress approving  the  constitution  that  has  been  drawn 
up  and  declaring  the  former  territory  one  of  the 
States  of  the  Union,  or  whether  the  vivifying  force  is 
derived  from  the  constituent  act  of  the  people  of  the 
territory  in  framing  and  adopting  their  state  constitu- 
tion. The  latter  is  the  view  most  acceptable  to  the 
States'  Rights  school.^  It  would  seem  to  be  sufficiently 
plain,  however,  that  the  former  is  the  correct  doctrine ; 
for  there  can  be  no  question  but  that  it  lies  within  the 
power  of  Congress  arbitrarily  to  refuse  its  approval  to 
a  constitution  that  has  been  framed  by  the  people  of 
a  territory  strictly  in  accordance  with  the  require- 

1  In  Brownson's  "American  Republic,"  premising  that  the  en- 
trance of  territories  into  the  Union  as  States  is  the  tree  act  of 
the  peoples  of  the  respective  territories,  the  argument  was  made 
that  the  States  of  the  Southern  Confederacy,  by  their  ordinances 
of  secession,  in  effect  annulled  these  acts,  and  thus,  ipso  facto,  rele- 
gated themselves  to  the  status  of  territories,  and  as  such  came 
under  the  complete  conti'ol  of  Congress  for  that  body  to  "  recon- 
struct "  their  governments  as  it  should  see  fit,  and  readmit  them 
as  States,  and  upon  such  terms,  as  it  should  approve. 

270 


ADMISSION   OF  NEW   STATES 


ments  of  the  Enabling  Act.  The  final,  and  therefore 
decisive  step,  has  thus  to  be  taken  by  the  Federal  Gov- 
ernment. 

This  doctrine  has,  indeed,  received  judicial  sanction 
at  the  hands  of  the  United  States  Supreme  Court  in 
its  decision  in  the  case  of  Scott  v.  Jones  (5  How., 
343  ).i 

1  Cf.  Jameson,  "Constitutional  Convention,"  Sec.  207;  "Opin- 
ions of  U.  S.  Attorney-General,"  II,  726;  and  speech  of  H.  W. 
Davis,  in  Appendix  to  Vol.  XXXYII  of  the  "Congi-essioual  Globe," 
pp.  261-262. 


271 


CHAPTER  XIX 

INTERSTATE    RELATIONS 

In  the  chapters  that  have  gone  before  there  have 
been  considered  the  constitutional  relations  which  ex- 
ist between  the  federal  government  upon  the  one  side 
and  state  governments  upon  the  other.  In  order  to 
complete  the  account  of  the  American  Constitutional 
System  it  will  now  be  necessary  to  give  a  description 
of  the  relations  which  exist  between  the  several  States 
themselves. 

Except  as  otherwise  specifically  provided  by  the  fed- 
eral Constitution,  the  States  of  the  American  Union, 
when  acting  within  the  spheres  of  government  re- 
served to  them,  stand  toward  one  another  as  indepen- 
dent sovereign  States.  The  laws  of  one  State  have,  ex 
propria  vigore,  no  force,  and  its  officials  have  no  public 
authority,  outside  of  its  own  boundaries.^ 

1  The  general  principles  of  interstate  comity,  that  is,  those 
principles  that  hold  good  in  the  field  of  the  "  Conflict  of  Laws  " 
or  Private  International  Law,  apply,  miitis  mutandis,  to  the  com- 
monwealth members  of  the  American  Union  in  precisely  the 
same  manner  that  they  do  to  sovereign  independent  States. 
Even  a  brief  presentation  of  these  principles  would  be  outside  of 
the  province  of  this  work.  "  The  rules  of  private  international 
law  are  taken  notice  of  by  the  courts  just  as  are  the  general 
principles  of  the  common  law ;  and  the  federal  courts,  like  those 

272 


INTERSTATE   RELATIONS 


This  general  principle  of  political  and  legal  exclu- 
siveness,  is,  however,  modified  by  the  federal  Constitu- 
tion in  the  following  respects : 

1.  "  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall  on  demand  of  the  executive  authority  of 
the  State  fropi  which  he  fled,  be  delivered  up  to  be  removed 
to  the  State  having  jurisdiction  of  the  crime"  (Art.  IV, 
Sec.  2).  As  we  have  already  learned,  this  constitutional 
provision  has  been  construed  to  impose  simply  a  moral  obli- 
gation upon  the  States— not  a  legal  obligation  the  perform- 
ance of  which  by  the  state  authorities  may  be  compelled  by 
the  Federal  Government. 

2.  "  Full  faith  and  credit  shall  be  given  in  each  State  to  the 
public  acts,  records,  and  judicial  proceedings  of  every  other 
State,  and  Congress  may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be 
proved  and  the  effect  thereof"  (Art.  IV,  Sec.  1)A 

of  the  States,  when  administrating  justice  within  a  State  be- 
tween suitors  entitled  to  bring  suits  therein,  will  recognize  and 
be  governed  by  them.  But,  like  other  rules  of  law,  they  are  sub- 
ject to  be  varied  and  controlled  by  state  legislation,  and  there 
may  be  and  often  is  a  general  state  policy  upon  some  particular 
subject  before  which  the  rules  of  private  international  law 
which  are  opposed  to  it  must  give  way."  Cooley,  "Principles  of 
Constitutional  Law,"  p.  178. 

1  This  Congress  has  done.  By  a  law  passed  in  1790  ("Revised 
Statutes,"  Sec.  905),  it  is  provided  that  "The  acts  of  the  legislature 
of  any  State  or  Territory,  or  of  any  country  subject  to  the  jurisdic- 
tion of  the  United  States,  shall  be  authenticated  by  having  the 
seals  of  such  State,  Territory  or  country  affixed  thereto.  The 
records  and  judicial  proceedings  of  the  courts  of  any  State  or 
Territory,  or  of  any  such  country,  shall  be  proved  or  admitted  in 
any  other  court  within  the  United  States,  by  the  attestation  of 

18  273 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

3.  "The  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States  "  (Art. 
IV,  Sec.  2). 

The  last  two  of  these  constitutional  modifications  of 
the  interstate  exclusiveness  of  the  members  of  the 
American  Union  require  some  discussion. 

The  provision  that  "full  faith  and  credit  shall  be 
given  in  each  State  to  the  public  acts,  records,  and  ju- 
dicial proceedings  of  every  other  State,"  means,  that 
when,  in  any  legal  proceeding  instituted  in  one  State, 
there  is  involved  a  right  that  is  evidenced  by  or  has 
been  recognized  or  created  by  a  legislative  act,  record, 
or  judicial  proceeding  of  another  State,  it  shall  be  rec- 
ognized and  enforced. 

Thus,  if  a  person  after  actual  service  of  process 
upon  a  debtor  obtain  judgment  against  him  in  the 
courts  of  one  State,  he  may  bring  suit  upon  that  judg- 
ment against  his  debtor  and  attach  his  property  in  any 
other  State,  and  in  such  suit  the  debtor  may  not  at- 
tack the  judgment  upon  its  merits.  He  may  deny  that 
such  a  judgment  exists,  or  question  the  jurisdiction  of 
the  court  that  rendered  it,  but,  these  pleas  being  over- 
ruled, he  cannot  further  oppose  the  rendition  of  a  new 
judgment  against  him  upon  the  ground  that  the  court 
that  rendered   the   first  decision   against  liim   erred 

the  clerk,  and  the  seal  of  the  court  annexed,  if  there  be  a  seal, 
together  with  a  certificate  of  the  judge,  chief  justice,  or  pre- 
siding magistrate,  that  the  said  attestation  is  in  due  form.  And 
the  said  records  and  judicial  proceedings  so  authenticated,  shall 
have  such  faith  and  credit  given  them  in  every  court  within  the 
United  States  as  they  have  by  law  and  usage  in  the  courts  of 
the  State  from  which  they  are  taken." 

274 


INTERSTATE   RELATIONS 


either  at  law  or  in  its  determination  of  the  facts.  The 
real  effect  of  the  constitutional  provision  is  thus  to 
establish  a  binding  rule  of  evidence,  rather  than  one  of 
jurisdiction.  A  judgment  rendered  in  one  State  can- 
not be  treated  as  a  judgment  in  another  State,  but  it 
may  serve  as  the  indisputable  evidence  of  a  debt. 
Thus,  referring  to  this  constitutional  clause  and  to  tha 
statute  passed  by  Congress  in  pursuance  of  it,  the  Su- 
preme Court  has  said  in  Wisconsin  v.  Pelican  Insur- 
ance Co.  (127  U.  S.,  265)  :  "While  they  make  the 
record  of  a  judgment,  rendered  after  due  notice  in  one 
State,  conclusive  evidence  in  the  courts  of  another 
State  or  of  the  United  States,  of  the  matter  adjudged, 
they  do  not  affect  the  jurisdiction  either  of  the  court 
in  which  the  judgment  is  rendered  or  of  the  court  in 
which  it  is  offered  in  evidence.  Judgments  recovered 
in  one  State  of  the  Union,  when  proved  in  the  courts 
of  another  government,  whether  state  or  national, 
within  the  United  States,  differ  from  judgments  recov- 
ered in  a  foreign  country  in  no  other  respect  than  in 
not  being  reexaminable  on  their  merits,  nor  impeach- 
able for  a  fraud  in  obtaining  them,  if  rendered  by  a 
court  having  jurisdiction  of  the  cause  and  of  the  par- 
ties. In  the  words  of  Justice  Story :  '  .  .  .  The  Consti- 
tution did  not  mean  to  confer  any  new  power  upon  the 
States,  but  simply  to  regulate  the  effect  of  their 
acknowledged  jurisdiction  over  persons  and  things 
within  the  territory.  It  did  not  make  the  judgments 
of  other  States  domestic  judgments  to  all  intents  and 
purposes,  but  only  gave  a  general  validity,  faith,  and 
credit  to  them  as  evidence.  No  execution  can  issue 
upon  such  judgments  without  a  new  suit  in  the  tribu- 

275 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

iials  of  other  States.  And  they  enjoy  not  the  right  of 
priority  or  lien  which  they  have  in  the  State  where 
they  are  pronounced,  but  that  only  which  the  lex  fori 
gives  to  them  by  its  own  laws  in  their  character  of 
foreign  judgments.'  " 

The  real  force  and  meaning  of  this  "full  faith  and 
credit"  clause  of  the  Constitution  has  been  especially 
worked  out  in  connection  with  the  subject  of  marriage 
and  divorce  and  it  will  therefore  be  proper  to  state 
briefly  the  positions  that  the  Supreme  Court  has  as- 
sumed upon  this  point. 

Shortly  stated,  this  court  has  held  that  one  State  is 
not  obliged  to  recognize  the  validity  of  a  decree  of  di- 
vorce granted  by  a  court  of  another  State  unless  that 
court  had  jurisdiction  to  grant  it,  and  that  such  juris- 
diction depends  upon  the  domicil  of  the  parties.  If 
the  bona  fide  domicil  of  both  of  the  parties,  or  of  the 
husband  only,  is  that  of  the  State  in  which  the  divorce 
is  granted,  the  decree  is  binding  in  every  other  State 
(Atherton  v.  Atherton,  181  U.  S.,  155).  It  is  also 
similarly  valid  if  the  bo7ia  fide  domicil  of  but  the  wife 
be  in  the  State  in  which  the  decree  is  granted,  if  the 
wife  has  left  the  home  of  her  husband  because  of  mis- 
conduct upon  his  part,  and  notice  actual  or  construc- 
tive (i.  e.,  by  publication  or  mailing  of  notice)  of  the 
beginning  of  the  suit  has  been  served  upon  him.  A  de- 
cree of  divorce  granted  the  husband  by  a  court  of  the 
State  in  which  he  is  domiciled,  if  proper  notice  of  the 
beginning  of  the  suit  has  been  served  upon  the  wife,  is 
valid  in  other  States  whether  or  not  he  has  in  fact  left 
his  wife  without  good  cause.  This  is  because  the  mat- 
rimonial domicil  is  that  of  the  husband,  and  the  wife 

276 


INTERSTATE   RELATIONS 


can  obtain  a  different  domieil  only  in  case  of  fault 
upon  his  part.  "Whether  or  not  a  state  court  has  juris- 
diction to  render  a  decree  of  divorce  that  will  have  ex- 
traterritorial effect  where  the  domieil  of  the  party 
plaintiff'  only  is  in  the  State,  but  the  matrimonial 
domieil  is  in  another  State,  and  where  there  has  been 
only  constructive  and  not  actual  service  upon  the  de- 
fendant, has  not  yet  been  answered  by  the  Supreme 
Court.^  The  better  opinion  would  seem  to  be,  however, 
that  it  has.  AVhere  the  plaintiff  has  not  a  bona  fide 
domieil  in  the  State,  a  court  cannot  render  a  decree 
binding  in  other  States  even  if  the  non-resident  de- 
fendant voluntarily  enters  a  personal  appearance 
(Andrews  v.  Andrews,  188  U.  S.,  14).  Of  course, 
however,  there  is  nothing  to  prevent  courts  of  one 
State  from  recognizing,  if  they  see  fit,  a  decree  thus 
granted  in  another  State.  The  provision  of  the  Fed- 
eral Constitution  is  brought  into  force  only  when  state 
courts  refuse  to  grant  full  faith  and  credit  (Lynde 
V.  Lynde,  181  U.  S.,  183). 

Finally  it  should  be  said  that  in  all  cases  where  the 
notice  that  has  been  served  upon  the  defendant  has 
been  but  a  constructive  one,  that  is,  by  publication  or 
mailing  and  not  personal,  the  decree  that  is  rendered 
has  no  extraterritorial  force  except  as  dissolving  the 
matrimonial  status.    It  cannot  control  in  an  extrater- 

^  In  Andrews  v.  Andrews,  decided  in  1903,  the  Court  said : 
''True  it  is  that  in  Bell  v.  Bell  and  Streitwolf  v.  Streitwolf,  the 
question  was  reserved  whether  jurisdiction  to  render  a  divorce 
having  extraterritorial  effect  could  be  acquired  by  a  mere 
domieil  in  the  State  of  the  party  plaintiff,  where  there  had 
been  no  matrimonial  domieil  in  such  State— a  question  also  re- 
served here." 

277 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

ritorial  manner  (juestions  of  property  rights,  custody 
of  children,  and  the  payment  of  alimony. 

The  same  principle  appears  in  all  suits.  Where  only 
constructive  service  has  been  obtained,  only  a  judg- 
ment in  rem  may  be  rendered,  that  is,  one  upon  which 
execution  may  be  issued  against  any  property  within 
the  State.  Only  in  case  there  has  been  personal  service 
upon  the  defendant  may  a  judgment  in  personam  be 
rendered,  upon  which  suit  may  be  brought  in  another 
State. 

The  clause  of  the  Constitution  which  declares  that 
"the  citizens  of  each  State  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  States," 
has  for  its  general  aim  the  prevention  of  arbitrary  and 
vexatious  discriminations  by  the  several  States  in 
favor  of  their  own  citizens  and  against  the  citizens  of 
other  States.  "It  was  undoubtedly  the  object  of  the 
clause  in  question,"  says  the  Supreme  Court  in  the 
case  of  Paul  v.  Virginia  (8  Wall.,  168),  "to  place  the 
citizens  of  each  State  upon  the  same  footing  with  citi- 
zens of  other  States,  so  far  as  the  advantages  resulting 
from  citizenship  in  those  States  are  concerned.  It  re- 
lieves them  from  the  disabilities  of  alienage  in  other 
States;  it  inhibits  discriminating  legislation  against 
them  by  other  States;  it  gives  them  the  right  of  free 
ingress  into  other  States,  and  egress  from  them;  it  in- 
sures to  them  in  other  States  the  same  freedom  pos- 
sessed by  the  citizens  of  those  States  in  the  acquisition 
and  enjoyment  of  property  and  in  the  pursuit  of  hap- 
piness ;  and  it  secures  to  them  in  other  States  the  equal 
protection  of  their  laws.  It  has  been  justly  said  that 
no  provision  in  the  Constitution  has  tended  so  strongly 

278 


INTERSTATE   RELATIONS 


to  constitute  the  citizens  of  the  United  States  one  peo- 
ple as  this  (Lemmon  v.  The  People  of  N.  Y.,  20  N.  Y., 
607).  Indeed,  without  some  provision  of  the  kind,  re- 
moving from  the  citizens  of  each  State  the  disabilities 
of  alienage  in  the  other,  and  giving  them  equality  of 
privilege  with  citizens  of  those  States,  the  Republic 
would  have  constituted  little  more  than  a  league  of 
States ;  it  would  not  have  constituted  the  Union  which 
now  exists. ' ' 

In  a  very  early  case  in  the  federal  Circuit  Court 
(Corfield  v.  Coryell,  4  Wash.  C.  C,  371),  Justice 
Washington  attempted  a  still  more  particular,  though 
not  an  exhaustive,  enumeration  of  the  privileges  and 
immunities  that  are  protected  from  state  discrimina- 
tion. He  there  said:  ''The  inquiry  is,  what  are  the 
privileges  and  immunities  of  citizens  in  the  several 
States?  We  feel  no  hesitation  in  confining  these  ex- 
pressions to  those  privileges  and  immunities  which  are, 
in  their  nature,  fundamental ;  which  belong,  of  right, 
to  the  citizens  of  all  free  governments,  and  which  have, 
at  all  times,  been  enjoyed  by  the  citizens  of  the  several 
States  which  compose  this  Union  from  the  time  of  their 
becoming  free,  independent,  and  sovereign.  What 
these  fundamental  principles  are,  it  would  perhaps  be 
more  tedious  than  difficult  to  enumerate.  They  may, 
however,  be  comprehended  under  the  following  general 
heads:  protection  by  the  government,  the  enjoyment 
of  life  and  liberty,  with  the  right  to  acquire  and  pos- 
sess property  of  every  kind,  and  to  pursue  and  obtain 
happiness  and  safety ;  subject  nevertheless  to  such  re- 
straints as  the  government  may  justly  prescribe  for 
the  general  good  of  the  whole.    The  right  of  a  citizen 

279 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

of  one  State  to  pass  through  or  to  reside  in  any  other 
State  for  the  purposes  of  trade,  agriculture,  profes- 
sional pursuits  or  otherwise ;  to  claim  the  benefit  of  the 
writ  of  habeas  corpus;  to  institute  and  maintain  ac- 
tions of  any  kind  in  the  courts  of  the  State ;  to  take, 
hold,  and  dispose  of  property,  either  real  or  personal ; 
and  an  exemption  from  higher  taxes  or  impositions 
than  are  paid  by  the  other  citizens  of  the  State,  may  be 
mentioned  as  some  of  the  particular  privileges  and  im- 
munities of  citizens,  which  are  clearly  embraced  by  the 
general  description  of  privileges  deemed  to  be  funda- 
mental ;  to  which  may  be  added  the  elective  franchise, 
as  regulated  and  established  by  the  laws  or  constitu- 
tion of  the  State  in  which  it  is  to  be  exercised.^  These, 
and  many  others  which  might  be  mentioned,  are, 
strictly  speaking,  privileges  and  immunities,  and  the 
enjoyment  of  them  by  the  citizens  of  each  State  in 
every  other  State  was  manifestly  calculated  (to  use 
the  expression  of  the  preamble  to  the  corresponding 
provision  in  the  old  Articles  of  Confederation)  'the 
better  to  secure  and  perpetuate  mutual  friendship  and 
intercourse  among  the  people  of  the  different  States  of 
the  Union.'  " 

Much  of  the  foregoing  quotation  is  ohiter,  the  deter- 
mination of  the  commonwealth  privileges  and  immu- 
nities not  being  necessarily  involved  in  the  case. 
Many  of  these  rights  have,  however,   in  subsequent 

1  As  we  shall  presently  see,  the  right  to  the  exercise  in  the 
several  States  of  the  elective  franchise  may  be  made  dependent 
upon  residence  in  the  State  for  a  fixed  period.  This  period  of 
residenceship  must  be  the  same  for  all  persons  coming  from  any 
of  the  other  States. 

280 


INTERSTATE   RELATIONS 


cases,  been  specifically  passed  upon  and  sustained/ 
and  it  is  believed  that  there  is  not  one  of  them  that 
would  not  be  declared  by  the  Supreme  Court,  in  a 
proper  case,  to  be  beyond  the  discriminating  power  of 
the  States. 

The  latest  important  construction  by  the  Supreme 
Court  of  this  equal  privileges  and  immunities  clause  is 
to  be  found  in  the  case  of  Blake  t'.  McClung  (172  U.  S., 
239),  decided  in  1898.  In  that  case  there  was  held  un- 
constitutional an  act  of  the  State  of  Tennessee  which 
provided  that  resident  creditors  of  mining  and  manu- 
facturing corporations  chartered  in  other  States,  and 
doing  business  in  the  State  of  Tennessee  should  have 
"a  priority  in  the  distribution  of  assets,  or  subjection 
to  the  same,  or  any  part  thereof,  to  the  payment  of 
debts  over  all  simple  contract  creditors,  being  residents 
of  any  other  country  or  countries."  After  calling  at- 
tention to  the  fact  that  the  court  had  never  attempted 
to  give  an  exact  or  comprehensive  definition  of  the 
clause  "privileges  and  immunities"  but  had  deemed 
it  "safe,  and  more  in  accordance  with  the  duty  of  a 
judicial  tribunal,  to  leave  its  meaning  to  be  determined 
in  each  case,  upon  a  view  of  the  particular  rights 
asserted  and  denied  therein,"  the  Court  neverthe- 
less goes  on  to  quote  with  approval  the  decision  of 
Justice  Washington  in  Corfield  v.  Coryell,  and  the 
opinion  of  the  Supreme  Court  in  Paul  v.  Virginia. 
The  principles  therein  stated,  it  is  declared,  "have 
not  been  modified  by  any  subsequent  decision  of  this 
court. ' ' 

^  See  especially  articles  byW.  S.  Meyers  in  "Michigan 
Law  Review,"  I,  pp.  286,  364. 

281 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


Turning  now  to  the  negative  side  of  the  subject,  it 
may  be  said  that  a  citizen  of  one  State,  resident  in  or 
seeking  the  enforcement  of  rights  in  another  State,  is 
not  entitled,  of  right,  to  all  the  privileges  and  immuni- 
ties that  the  laws  and  constitution  of  his  own  State 
may  grant  to  him. 

"The  privileges  and  immunities  secured  to  citizens 
of  each  State  in  the  several  States,  by  the  provision  in 
question,"  the  Supreme  Court  has  declared  (Paul  v. 
Virginia),  "are  those  privileges  and  immunities  which 
are  common  to  the  citizens  in  the  latter  States  under 
their  constitution  and  laws  by  virtue  of  their  being 
citizens.  Special  privileges  enjoyed  by  citizens  in  their 
own  States  are  not  secured  in  other  States  by  this  pro- 
vision. It  was  not  intended  by  the  provision  to  give 
to  the  laws  of  one  State  any  operation  in  other  States. 
They  can  have  no  such  operation,  except  by  the  per- 
mission, express  or  implied,  of  those  States." 

Continuing,  the  Court  goes  on  in  the  same  case  to 
declare  that  inasmuch  as  a  corporation  is  the  mere 
creation  of  local  law,  it  can  have  no  legal  existence,  or 
right  to  do  business,  beyond  the  limits  of  the  sover- 
eignty by  which  it  has  been  created.  In  other  words, 
the  interstate  comity  clause  of  the  federal  Constitution 
which  we  have  been  discussing  does  not  necessitate  the 
recognition  by  the  several  States  of  corporations  cre- 
ated by  any  of  the  other  States.  ' '  Having  no  absolute 
right  of  recognition  in  other  States,"  says  the  Court, 
"but  depending  for  such  recognition  and  enforcement 
of  its  contracts  upon  their  assent,  it  follows,  as  a  mat- 
ter of  course,  that  such  assent  may  be  granted  upon 
such  terms  and  conditions  as  those  States  may  think 

282 


INTERSTATE   RELATIONS 


proper  to  impose.  The}^  may  exclude  the  foreign  cor- 
poration entirely;  they  may  restrict  its  business  to 
particular  localities,  or  they  may  exact  such  security 
for  the  performance  of  its  contracts  with  their  citizens 
as  in  their  judgment  will  best  promote  the  public  in- 
terest.   The  whole  matter  rests  in  their  discretion." 

This  principle  of  state  omnipotence  when  dealing 
Avith  the  corporations  of  other  States  is,  however,  lim- 
ited, it  should  be  observed,  in  the  very  important  re- 
spect that  in  so  far  as  such  corporations  are  engaged 
in  the  conduct  of  interstate  commerce  they  may  not  be 
controlled,  the  regulation  of  this  subject  being,  as  has 
been  before  shown,  exclusively  a  federal  concern.^ 

The  interstate  comity  clause  of  the  federal  Constitu- 
tion also  does  not  compel  the  several  States  to  grant  to 
resident  citizens  of  the  other  States  the  political  privi- 
leges extended  their  own  citizens.  This  the  Supreme 
Court  has  held  from  the  very  beginning,  and  has 
recently  reaffirmed  in  the  case  of  Blake  v.  McClung. 
"A  State,"  says  the  court  in  that  case,  "  may,  by  rule 
uniform  in  its  operation  as  to  citizens  of  the  several 
States,  require  residence  within  its  limits  for  a  given 
time  before  a  citizen  of  another  State  who  becomes  a 
resident  thereof  shall  exercise  the  right  of  suffrage  or 
become  eligible  to  office.  It  has  never  been  supposed 
that  regulations  of  that  character  materially  inter- 
fered wnth  the  enjoyment  by  citizens  of  each  State  of 
the  privileges  and  immunities  secured  by  the  Constitu- 
tion to  citizens  of  the  several  States.  The  Constitution 
forbids  only  such  legislation  affecting  citizens  of  the 

1  See  especially  Pensaeola  Telegraph  Co.  v.  "Western  Union 
Telegraph  Co.,  96  U.  S.,  1. 

283 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


respective  States  as  will  substantially  or  practically 
put  a  citizen  of  one  State  in  a  condition  of  alienage 
when  he  is  within  or  removes  to  another  State,  or  when 
asserting  in  another  State  the  rights  that  commonly 
appertain  to  those  who  are  part  of  the  political  com- 
munity known  as  the  People  of  the  United  States,  by 
and  for  whom  the  Government  of  the  Union  was  or- 
dained and  established." 

Finally,  it  may  be  said,  that  the  several  States  may 
impose  upon  non-residents  such  special  limitations  and 
obligations  as  are,  in  aim  and  effect,  not  discriminative 
but  reasonably  necessary  for  the  protection  of  their 
own  citizens  from  fraud,  disease,  or  injury  of  any  sort. 
Thus,  as  an  example,  though  the  citizens  of  other 
States  may  not  be  forbidden  to  sue  in  the  courts  of  the 
State,  they  may  be  required  to  give  bonds  for  costs 
not  exacted  of  residents. 


COMPACTS   BETWEEN   THE   STATES 

The  control  of  international  relations  being  exclu- 
sively vested  in  the  Federal  Government,  it  necessarily 
follows  that  the  several  States  have  no  authority  to 
enter  into  any  diplomatic  or  political  relations  with 
foreign  powers.  Nevertheless,  from  an  excess  of  cau- 
tion, the  federal  Constitution  declares  that  "No  State 
shall  enter  into  any  treaty,  alliance  or  confederation," 
and  that  "No  State  shall,  without  the  consent  of  Con- 
gress, .  .  .  enter  into  any  agreement  or  compact  with 
another  State,  or  with  a  foreign  powder." 

It  will  be  noticed  that  in  the  latter  of  these  two  con- 
284 


INTERSTATE   RELATIONS 


stitutional  clauses,  the  qualification  "without  the  con- 
sent of  Congress"  is  introduced.  There  has,  therefore, 
never  been  any  doubt  but  that  when  this  congressional 
consent  is  extended,  the  several  States  of  the  American 
Union  may  enter  into  agreements  and  compacts  with 
one  another,  so  long  as  their  effect  is  not  to  create  what 
in  political  language  is  termed  an  "alliance"  or  "eon- 
federation,"!  Not  only  this,  but  it  has  been  held  that 
there  are  a  variety  of  subjects  concerning  which  the 
several  States  may  enter  into  agreements  with  one  an- 
other without  the  necessity  of  obtaining  the  consent 
of  Congress.  Upon  this  point,  in  Virginia  v.  Tennes- 
see (148  U.  S.,  503),  the  Supreme  Court  said: 

"There  are  many  matters  upon  which  different 
States  may  agree  that  can  in  no  respect  concern  the 
United  States.  If,  for  instance,  Virginia  should  come 
into  possession  and  ownership  of  a  small  parcel  of  land 
in  New  York  which  the  latter  State  might  desire  to 
acquire  as  a  site  for  a  public  building,  it  would  hardly 
be  deemed  essential  for  the  latter  State  to  obtain  the 
consent  of  Congress  before  it  could  make  a  valid  agree- 
ment with  Virginia  for  the  purchase  of  the  land.  If 
Massachusetts,  in  forwarding  its  exhibits  to  the 
World's  Fair  at  Chicago,  should  desire  to  transport 
them  a  part  of  the  distance  over  the  Erie  Canal,  it 
would  hardly  be  deemed  essential  for  that  State  to 
obtain  the  consent  of  Congress  before  it  could  contract 
with  New  York  for  the  transportation  of  the  exhibits 
through  the  State  in  that  way.  If  the  bordering  line 
of  the  two  States  should  cross  some  malarious  and 
disease-producing  district,  there  could  be  no  possible 

1  Green  v.  Biddle,  8  Wh.,  1 ;  Poole  v.  Fleeger,  11  Pet.,  185. 

285 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

reason,  on  any  conceivable  public  grounds,  to  obtain 
the  consent  of  Congress  for  the  bordering  States  to 
agree  to  unite  in  removing  the  cause  of  disease.  So,  in 
the  case  of  threatened  invasion  of  cholera,  plague,  or 
other  causes  of  sickness  and  death,  it  would  be  the 
height  of  absurdity  to  hold  that  the  threatened  States 
could  not  unite  in  providing  means  to  prevent  and 
repel  the  invasion  of  the  pestilence  without  obtaining 
the  consent  of  Congress,  which  might  not  be  at  the 
time  in  session." 

"If,  then,"  the  Court  asks,  "the  terms  'compact'  or 
'agreement'  in  the  Constitution  do  not  apply  to  every 
possible  compact  or  agreement  between  one  State  and 
another,  for  the  validity  of  which  the  consent  of  Con- 
gress must  be  obtained,  to  what  compacts  or  agree- 
ments does  the  Constitution  apply?  "  "Looking  at 
the  clause  in  which  the  terms  'compact'  or  'agreement' 
appear,"  answers  the  Court,  "it  is  evident  that  the 
prohibition  is  directed  to  the  formation  of  any  combi- 
nation tending  to  the  increase  of  political  power  in  the 
States,  which  may  encroach  upon  or  interfere  with  the 
just  supremacy  of  the  United  States. ' '  ^ 


SUITS   BETWEEN   STATES 

A  FINAL  topic  to  be  discussed  in  connection  with  the 
general  subject  of  Interstate  Relations  is  that  of  the 
amenability  of  one  State  to  a  suit  brought  against  it 
by  another  State. 

1  The  Court  then  goes  on  to  quote  with  approval  from  Story's 
"Commentaries  upon  the  Constitution,"  Sec.  1403. 

286 


INTERSTATE   RELATIONS 


Since  the  very  first  years  of  the  Union,  the  Supreme 
Court  of  the  United  States,  in  the  exercise  of  its  origi- 
nal jurisdiction,  has  entertained  suits  between  States 
upon  questions  of  boundary.^  This  tribunal  has  not, 
however,  limited  its  jurisdiction  over  suits  between 
States  to  boundary  controversies  merely.  Whenever 
it  has  discovered  substantial  state  interests  at  stake,  it 
has  extended  its  judicial  power.  Thus,  in  the  recent 
case  of  Missouri  v.  Illinois  (180  U.  S.,  208),  decided  in 
1900,  in  Avhich  the  State  of  Missouri  had  complained 
that  the  health  and  property  of  her  citizens  were  en- 
dangered by  the  emptying  into  the  Mississippi  River 
of  the  sewage  of  the  City  of  Chicago,  the  Supreme 
Court,  in  overruling  a  demurrer  as  to  its  jurisdiction, 
declared:  "An  inspection  of  the  bill  discloses  that  the 
nature  of  the  injury  complained  of  is  such  that  an  ade- 
quate remedy  can  only  be  found  in  this  Court  at  the 
suit  of  the  State  of  Missouri.  It  is  true  that  no  ques- 
tion of  boundary  is  involved,  nor  of  direct  property 
rights  belonging  to  the  complainant  State.  But  it 
must  surely  be  conceded  that,  if  the  health  and  com- 
fort of  the  inhabitants  of  a  State  are  threatened,  the 
State  is  the  proper  party  to  represent  and  defend 
them.  If  Missouri  were  an  independent  and  sovereign 
State  all  must  admit  that  she  could  seek  a  remedy  by 
negotiation,  and,  that  failing,  by  force.  Diplomatic 
powers  and  the  right  to  make  war  having  been  surren- 
dered to  the  General  Government,  it  was  to  be  expected 
that  upon  the  latter  would  be  devolved  the  duty  of 
providing  a  remedy,   and  that  remedy,  we  think,   is 

1  For  a  review  of  such  cases  see  the  opiuion  of  the  Supreme  Court 

rendered  iu  the  case  of  Missouri  v.  Illinois,  180  U.  S.,  208. 

287 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

found  in  the  constitutional  provisions  we  are  consid- 
ering. ' ' 

So,  also,  in  the  case  of  Kansas  v.  Colorado  (185 
U.  S.,  125),  decided  in  1902,  the  Supreme  Court  held 
that  a  controversy  between  States  of  which  it  had 
original  jurisdiction  was  presented  by  a  bill  averring 
that  the  defendant  State  had,  and  was  about  to  exer- 
cise, the  power  wholly  to  deprive  the  plaintiff  State  of 
the  benefit  of  the  water  of  the  Arkansas  River  which 
rises  in  the  State  of  Colorado  and  flows  into  and 
through  the  State  of  Kansas. 

In  the  case  of  Louisiana  v.  Texas  (176  U.  S.,  1), 
however,  the  court  held  that  a  bill  alleging  that  the 
public  officers  of  the  latter  State  were  so  executing 
quarantine  laws,  valid  in  themselves,  as  to  discriminate 
between  the  citizens  of  Texas  and  those  of  Louisiana, 
did  not  state  a  proper  ground  of  a  suit  between  States. 
In  its  opinion  the  Court  said :  "In  order  that  a  contro- 
versy between  States,  justiciable  in  this  court,  can  be 
held  to  exist,  something  more  must  be  put  forward 
than  that  the  citizens  of  one  State  are  injured  by  the 
maladministration  of  the  laws  of  another.  ...  A 
controversy  between  States  does  not  arise  unless  the 
action  complained  of  is  state  action,  and  acts  of  state 
officers  in  abuse  or  excess  of  their  powers  cannot  be 
laid  hold  of  as  in  themselves  committing  one  State  to 
a  distinct  collision  with  a  sister  State." 

Regarding  this  subject  of  suits  between  States,  it 
may  finally  be  added  that  it  has  been  held  that  neither 
Indian  tribes  nor  territories  are  "States"  in  the  sense 
of  the  clause  of  the  Constitution  granting  original  ju- 
risdiction to  the  Supreme  Court  (Cherokee  Nation  v. 
Georgia,  5  Pet.,  1 ;  and  Hepburn  v.  Ellzey,  2  Cr.,  445) . 

288 


INTERSTATE   RELATIONS 


No  instance  of  a  suit  between  a  foreign  power  and  one 
of  the  States  of  the  American  Union  has  arisen,  and 
it  is  very  doubtful  whether  the  Supreme  Court  would 
entertain  one.  A  foreign  power  could  not,  of  course, 
be  made  to  appear  as  a  defendant  in  such  a  suit,  and 
reason  would  therefore  suggest  that  it  should  not  be 
permitted  to  appear  as  a  plaintiff. 

The  question  whether  the  Supreme  Court  will  enter- 
tain a  suit  requiring  a  money  judgment  brought  by 
one  State  against  another,  has  just  been  decided  in 
the  affirmative.  Such  a  suit  was  brought  a  number  of 
years  ago  by  New  Hampshire  against  Louisiana  (108 
U.  S., 76), but  was  dismissed  upon  the  ground  that  the 
plaintiff  State,  was  not  really  a  party  of  interest,  but 
had  instituted  the  suit  in  behalf  of  some  of  its  own 
citizens.  In  the  case  of  South  Dakota  v.  North  Caro- 
lina (24  Supreme  Court  Keporter,  269),  however,  de- 
cided February  1,  1904,  it  appearing  that  South 
Dakota  was  suing  in  its  own  behalf,  the  Supreme 
Court  asserted  its  original  jurisdiction  and  rendered 
judgment  against  the  defendant  State,  North  Caro- 
lina. A  dissenting  opinion,  concurred  in  by  four  jus- 
tices, was  filed. 

No  suit  has  yet  been  brought  by  a  State  against  the 
United  States.  In  Chisholm  v.  Georgia,  Chief  Jus- 
tice Jay  indicated,  obiter,  that  such  a  suit  probably 
could  not  be  brought ;  but  in  Mississippi  v.  Johnson,  a 
contrary  view  was  intimated.^ 

A  number  of  suits  against  individual  States  insti- 

1  For  reasons  stated  in  Chapter  IX.  For  a  fuller  discussion  of 
this  point,  see  "Columbia  Law  Review,"  Vol.  II,  283,  364. 

2  See  two  excellent  articles  entitled  "  Notes  on  Suits  between 
States,"  in  the  "Columbia  Law  Review,"  Vol.  II,  283,  364. 

19  289 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

tuted  by  the  United  States  have  been  entertained  by 
the  Supreme  Court.  Thus  in  United  States  v.  North 
Carolina  (136  U.  S.,  211)  an  action  of  debt  upon  cer- 
tain bonds  issued  by  the  defendant  was  tried  and 
determined  upon  its  merits;  and  in  United  States  v. 
Texas  (143  U.  S.,  621)  a  question  of  boundary  was 
determined. 


290 


BIBLIOGRAPHICAL  NOTE 

This  note  is  by  no  means  intended  to  be  exhaustive. 
Its  aim  is  simply  to  suggest  the  more  important 
sources  of  information  regarding  the  constitutional 
law  of  the  United  States. 

I.  Bibliographies. 

Channing  and  Hart,  Guide  to  the  Study  of  American 
History.    1896. 

A.  B.  Hart,  Handbook  of  the  History,  Diplomacy,  and 
Government  of  the  United  States.    1901. 

A.  P.  C.  Griffin,  Select  List  of  Books  on  the  Consti- 
tution of  the  United  States  (pamphlet).    1903. 

W.  E.  Foster,  References  to  the  Constitution  of  the 
United  States  (pamphlet).    1890. 

II.  Sources. 

1.  United  States  Supreme  Court  Reports.  The  one 
great  source  of  information  regarding  the  constitu- 
tional law  of  the  United  States  is  the  reported  deci- 
sions of  the  federal  Supreme  Court.  The  volumes  in 
which  these  are  contained  now  (1904)  number  one 
hundred  and  ninety.  About  four  new  volumes  are 
added  each  year.  In  the  more  important  cases,  ab- 
stracts of  counsel  as  well  as  the  opinions  of  the  justices 
are  given.  Until  1875  these  volumes  received  the 
name  of  the  official  reporting  them.     Since  then  they 

291 


Abbreviations 

Volumes 

Periods  Covered 

Dall. 

4 

1790-1800 

Cr. 

9 

1801-1815 

Wh.  or  "Wheat. 

12 

1816-1827 

Pet. 

16 

1828-1842 

How. 

24 

1843-1860 

Black 

2 

1861-1862 

Wall. 

23 

1863-1874 

91-190  U. 

S. 

100 

1875-1904 

THE  AMERICAN  CONSTITUTIONAL  SYSTEM 

have  been  designated  simply  as  United  States  Reports. 
Current  decisions,  in  unbound  form,  are  published 
and  sold  to  subscribers. 

The  following  is  a  list  of  the  reports,  giving  their 
titles,  abbreviations  commonly  used  in  citing  them,  the 
number  of  volumes,  and  periods  covered. 

Reporters 

Dallas 

Cranch 

Wheaton 

Peters 

Howard 

Black 

Wallace 

United  States  Reports 

Volumes  91-107  U.  S.  inclusive  are  sometimes  cited  as  Otto  1-17. 

J.  B.  Thayer's  "Cases  in  Constitutional  Law" 
(1895),  in  two  very  large  volumes,  is  an  admirable 
selection  of  condensed  cases,  illuminated  with  notes, 
prepared  for  use  by  students  following  the  "Case 
Book"  system  of  instruction.  Smaller  collections 
are: 

C.  E.  Boyd's  "Cases  in  American  Constitutional 
Law"  (1898)  ; 

E.  McClain's  "A  Selection  of  Cases  on  Constitutional 
Law"  (1900).  * 

2.  Reports  of  the  Inferior  Federal  Courts.  Al- 
most all  important  constitutional  questions  are  carried 
to  the  Supreme  Court,  so  that  these  reports  are  very 
much  less  important  than  those  of  the  highest  court. 

3.  Reports  of  the  Highest  Courts  of  the  States. 
Many  important  constitutional  questions  in  state  con- 

292 


BIBLIOGRAPHICAL   NOTE 


stitutional   law   receive   their   final   determination   by 
these  tribunals. 

4.  Opinions  of  the  Altorneij-Oeneral  of  the  United 
States.  These  opinions,  given  for  the  guidance  of 
federal  officers,  often  deal  with  important  constitu- 
tional questions  that  have  not  been,  or  cannot  be,  con- 
sidered by  the  Supreme  Court. 

5.  Federal  Statutes  and  Treaties.  Each  year  there 
is  published  by  the  National  Government  a  volume  en- 
titled "The  Statutes  at  Large  of  the  United  States  of 
America,  .  ,  .  and  Recent  Treaties,  Conventions,  Ex- 
ecutive Proclamations,  and  the  Concurrent  Resolu- 
tions of  the  Two  Houses  of  Congress."  In  1878  there 
was  published  "The  Revised  Statutes  of  the  United 
States, ' '  which  embraced  all  federal  laws,  general  and 
permanent  in  their  nature,  in  force  December  1,  1873. 
"A  Supplement  to  the  Revised  Statutes  of  the  United 

States,"  embracing  the  laws,  general  and  perma- 
nent in  their  nature,  passed  since  1873  and  in  force 
in  1891,  was  published  in  1891. 

"The  Compiled  Statutes  of  the  United  States."  3 
vols.  1901.  Gives  the  text  of  all  general  laws  of 
the  United  States,  with  annotations  and  index.  A 
supplement  to  this  publication,  giving  the  general 
laws  passed  by  the  Fifty-seventh  Congress,  was  pub- 
lished in  1904.    A  private  publication. 

Gould  and  Tucker,  Notes  on  United  States  Revised 
Statutes.  3  vols.  1898-1904.  A  private  publica- 
tion. 

6.  Messages  and  Papers  of  the  Presidents  of  the 
United  States  (1789-1897).  10  vols.  1899.  Pub- 
lished by  the  United  States  Government. 

293 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

III.  General  Treatises  on  United  States  Constitu- 
tional Latv  and  Government.  Alphabetically  ar- 
ranged. 

There  exists  no  single  work  that  is  at  once  modern, 
comprehensive,  and  satisfactory  in  method  of  treat- 
ment. The  following  treatises  will,  however,  be  found 
the  most  serviceable. 

B.  L.  Ashley,  The  American  Federal  State.    1902. 
H.  C.  Black,  Handbook  of  American  Constitutional 

Law.    2d  Ed.    1897. 
G.    S.   BouTWELL,    The    Constitution   of   the   United 

States  at  the  End  of  the  First  Century.    1895. 
H.  Brannon,  a  Treatise  on  the  Rights  and  Privileges 
Guaranteed  by  the  Fourteenth  Amendment  to  the 
Constitution  of  the  United  States.     1901. 
James  Bryce,  The  American  Commonwealth.    2  vols. 

1891. 
W.  G.  Bullitt,  Review  of  the  Constitution  of  the 

United  States.  1899. 
J.  W.  Burgess,  Political  Science  and  Comparative 
Constitutional  Law,  2  vols.  1890.  Compares  and 
criticizes  from  the  standpoint  of  political  science 
the  constitutions  of  the  United  States,  Germany, 
England,  and  France. 
H.  L.  Carson,  History  of  the  Supreme  Court  of  the 

United  States.    2  vols.    1903. 
T.  M.  CooLEY,  General  Principles  of  Constitutional 
Law  in  the  United  States.    3d  Ed.     1898.     An  ac- 
curate work  by  an  eminent  authority,  but  too  brief 
to  be  of  much  value. 
T.  M.  CooLEY,  A  Treatise  on  the  Constitutional  Limi- 
tations which  Rest  upon  the  Legislative  Power  of 
294 


BIBLIOGRAPHICAL   NOTE 


the  States  of  the  American  Union.  7th  Ed.  1903. 
A  great  work,  but,  as  its  title  indicates,  covering 
only  a  portion  of  the  field  of  American  constitu- 
tional law. 

T.  M.  CooLEY  and  others,  The  Constitutional  History 
of  the  United  States  as  Seen  in  the  Development  of 
its  Law.  1889.  A  series  of  excellent  lectures  by 
eminent  lawyers. 

B.  R.  Curtis,  The  Jurisdiction,  Practice,  and  Peculiar 
Jurisprudence  of  the  Courts  of  the  United  States. 
2d  Ed.  1896.  An  excellent  work  by  an  eminent 
judge. 

The  Federalist.  A  collection  of  essays  written  in 
1787,  by  Hamilton,  Madison,  and  Jay,  expounding 
the  Constitution  and  advocating  its  adoption  by  the 
States.    Still  indispensable  to  the  student. 

Roger  Foster,  Commentaries  on  the  Constitution  of 
the  United  States.  1895.  This  work  is  to  be  in  sev- 
eral volumes,  of  which  but  one  has  appeared. 

F.  J.  GooDNOW,  Comparative  Administrative  Law: 
An  Analysis  of  the  Administrative  Systems,  Na- 
tional and  Local,  of  the  United  States,  England, 
France,  and  Germany.    2  vols.    1893. 

W.  D.  Guthrie,  The  Fourteenth  Article  of  Amend- 
ment to  the  Constitution  of  the  United  States. 
1898. 

J.  I.  Hare,  American  Constitutional  Law.  2  vols. 
1889.  A  scholarly  work,  but  discursive  and  not  com- 
prehensive. 

H.   E.  VON  HoLST,  The   Constitutional  Law  of  the 
United  States  of  America.     1887.     A  brief,  sug- 
gestive, critical,  but  not  always  accurate  work. 
295 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 


James  Kent,  Commentaries  on  American  Law.  4 
vols.  14th  Ed.  1896.  One  book  of  this  great  work 
deals  with  constitutional  law. 

J.  J.  Lalor,  CyclopaBdia  of  Political  Science,  Political 
Economy,  and  of  the  Political  History  of  the  United 
States.     3  vols.     1881-84. 

S.  F.  Miller,  Lectures  on  the  Constitution  of  the 
United  States.  1891.  An  excellent  work  by  one  of 
the  justices  of  the  Supreme  Court. 

John  Ordronaux,  Constitutional  Legislation  in  the 
United  States:  Its  Origin  and  Application  to  the 
Relative  Powers  of  Congress  and  of  State  Legisla- 
tures.   1891. 

C.  S.  Patterson,  The  United  States  and  the  States 
under  the  Constitution.    1888. 

J.  N.  PoMEROY,  An  Introduction  to  the  Constitutional 
Law  of  the  United  States.  10th  Ed.  1888.  An  ex- 
cellent work,  of  which,  however,  there  is  unfortu- 
nately no  recent  edition. 

C.  F.  Randolph,  The  Law  and  Policy  of  Annexation. 
1901. 

Joseph  Story,  Commentaries  on  the  Constitution  of 
the  United  States.  2  vols.  5th  Ed.  1891.  A  clas- 
sic work. 

C.  G.  Tiedeman,  The  Unwritten  Constitution  of  the 
United  States.    1890. 

J.  R.  Tucker,  The  Constitution  of  the  United  States : 
A  Critical  Discussion  of  its  Genesis,  Develop- 
ment, and  Interpretation.  2  vols.  1899.  An 
excellent  modern  work,  by  a  Southern  lawyer  of 
eminence. 

W.   W.    Willoughby,    The    Supreme    Court   of   the 

296 


BIBLIOGRAPHICAL   NOTE 


United  States :   Its  History  and   Influence  in  our 
Constitutional  System.    1890. 

IV.  The  Nature  of  the  Federal  State. 

A.  B.  Hart,  An  Introduction  to  the  Study  of  Federal 

Government.    1891. 
J.  W.  Burgess,   Political   Science  and   Comparative 

Constitutional  Law.    2  vols.    1893. 
A.  V.  Dicey,  The  Law  of  the  Constitution.     6th  Ed. 

1902. 
L.  Le  Fur,  Etat  Federal  et  Confederation  d'Etats. 

1896. 
G.  Jellinek,  Die  Lehre  von  den  Staatenverbindungen. 

1882. 
S.  Brie,  Der  Bundesstaat.    1874. 
S.  Brie,  Theorie  der  Staatenverbindungen.     1886. 
E.  Borel,  Etude  sur  la  Souverainete  et  I'Etat  Federa- 

tif.    1886. 
W.  W.  WiLLOUGHBY,  The  Nature  of  the  State.    1896. 

V.  TJie  Nature  of  the  American  State.     Chrono- 
logically arranged. 

In  addition  to  the  general  treatises  on  United  States 

Constitutional  Law,  cited  above,  the  following  works 

are  of  value  in  tracing  the  history  of  theories  of  the 

Nature  of  the  American  State. 

St.   George   Tucker,   The   Commentaries   of   Black- 
stone.    Vol.  I,  Appendix.     1803. 

John  Taylor,  Constitution  Construed.     1820. 

"William  Rawle,  A  View  of  the  Constitution  of  the 
United  States  of  America.    1825. 

J.  C.  Calhoun,  Writings  of. 

297 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Daniel  Webster,  Speeches  of. 

W.  A.  DuER,  The  Constitutional  Jurisprudence  of  the 
United  States.    1843. 

J.  T.  Curtis,  The  History,  Origin,  Formation,  and 
Adoption  of  the  Constitution  of  the  United  States. 
1854. 

Francis  Lieber,  AVhat  is  our  Government:  League, 
Pact,  or  Government  ?    1861. 

Horace  Greeley,  The  American  Conflict.  2  vols. 
1864-65. 

B.  J.  Sage  (P.  C.  Centz),  The  Republic  of  Republics. 
1865. 

0.  A.  Brownson,  The  American  Republic.    1865. 

J.  A.  Jameson,  The  Constitutional  Convention:  Its 
History,  Powers,  and  Modes  of  Proceeding.  1st  Ed., 
1867.  '^4th  Ed.,  1887. 

E.  A.  Pollard,  The  Lost  Cause.    1867. 

A.  H.  Stephens,  A  Constitutional  View  of  the  War 
between  the  States.    1868-70. 

Elisha  Mulford,  The  Nation.    1870. 

W.  0.  Bateman,  Political  and  Constitutional  Law  of 
the  United  States.    1876. 

J.  C.  HuRD,  The  Theory  of  our  National  Existence,  as 
shown  by  the  Action  of  the  Government  of  the 
United  States  since  1861.    1881. 

P.  Bliss,  Of  Sovereignty.    1885. 

A.  W.  Small,  The  Beginnings  of  American  Nation- 
ality.   1890. 

J.  C.  HiJRD,  The  Union  State :  A  Letter  to  our  States- 
Rights  Friend.    1890. 

Brinton  Coxe,  An  Essay  on  Judicial  Power  and  Un- 
constitutional Legislation.    1893. 
298 


BIBLIOGRAPHICAL  NOTE 


C.  W.  LoRiNG,  Nullification,  Secession,  Webster's  Ar- 
gument, and  the  Virginia  and  Kentucky  Resolu- 
tions.   1893. 

J.  L.  M.  Curry,  The  Southern  States  of  the  American 
Union.    1895. 

E.  P.  Powell,  Nullification  and  Secession  in  the 
United  States.    1897. 

W.  A.  Dunning,  Essays  on  Civil  War  and  Recon- 
struction.   1898. 

C.  H.  BfTLER,  The  Treaty-Making  Power  of  the 
United  States.    2  vols.    1902. 

C.  E.  Merriam,  a  History  of  American  Political  Theo- 
ries.    1903. 


299 


CONSTITUTION 
OF  THE   UNITED   STATES^ 

We,  the  People  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the  general 
welfare,  and  secure  the  blessings  of  liberty  to  ourselves  and 
our  posterity,  do  ordain  and  establish  this  Constitution  for 
the  United  States  of  America. 

ARTICLE  I.— Legislative  Department 

Section  I.— All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  House  of  Kepresentatives. 

Section  II.— Clause  1.  The  House  of  Representatives  shall 
be  composed  of  members  chosen  every  second  year  by  the  peo- 
ple of  the  several  States,  and  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors  of  the  most  numer- 
ous branch  of  the  State  Legislature. 

Clause  2.  No  person  shall  be  a  Representative  who  shall 
not  have  attained  to  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  State  in  which  he  shall 
be  chosen. 

Clause  3.  Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which  shall 
be  determined  by  adding  to  the  whole  number  of  free  persons, 
including  those  bound  to  service  for  a  term  of  years,  and 
excluding  Indians  not  taxed,  three-fifths  of  all  other  persons. 

^  Italicized  clauses  have  been  repealed  or  have  become 
obselete. 

300 


CONSTITUTION   OF   THE   UNITED   STATES 

The  actual  enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United  States,  and 
within  every  subsequent  term  of  ten  years,  in  such  manner  as 
they  shall  by  law  direct.  The  number  of  Representatives  shall 
not  exceed  one  for  every  thirty  thousand,  but  each  State  shall 
have  at  least  one  Eepresentative ;  and  until  such  enumeration 
shall  be  made,  the  State  of  New  Hampshire  shall  be  entitled 
to  choose  three;  Massachusetts,  eight;  Bhode  Island  and  Provi- 
dence Plantations,  one;  Connecticut,  five;  New  YorTc,  six;  New 
Jersey,  four;  Pennsylvania,  eight;  Delaware,  one;  Maryland, 
six;  Virginia,  ten;  North  Carolina,  five;  South  Carolina,  five; 
and  Georgia,  three. 

Clause  4.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue  writs  of 
election  to  fill  such  vacancies. 

Clause  5.  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers;  and  shall  have  the  sole  power  of 
impeachment. 

Section  III.— Clause  1.  The  Senate  of  the  United  States 
shall  be  composed  of  two  Senators  from  each  State,  chosen  by 
the  Legislature  thereof,  for  six  years;  and  each  Senator  shall 
have  one  vote. 

Clause  2.  Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided  as  equally 
as  may  be  into  three  classes.  The  seats  of  the  Senators  of  the 
first  class  shall  be  vacated  at  the  expiration  of  the  second  year; 
of  the  second  class,  at  the  expiration  of  the  fourth  year;  and 
of  the  third  class,  at  the  expiration  of  the  sixth  year,  so  that 
one-third  may  be  chosen  every  second  year;  and  if  vacancies 
happen  by  resignation,  or  otherwise,  during  the  recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may  make  tem- 
porary appointments  until  the  next  meeting  of  the  Legislature, 
which  shall  then  fill  such  vacancies. 

Clause  3.  No  person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years  a  citi- 
zen of  the  United  States,  and  who  shall  not,  when  elected,  be 
an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

Clause  4.     The  Vice-President  of  the  United  States  shall  be 

301 


THE  AMERICAN   CONSTITUTIONAL  SYSTEM 

president  of  the  Senate,  but  shall  have  no  vote,  unless  they  be 
equally  divided. 

Clause  5.  The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore,  in  the  absence  of  the  Vice-Presi- 
dent, or  when  he  shall  exercise  the  office  of  President  of 
the  United  States. 

Clause  6.  The  Senate  shall  have  the  sole  power  to  try  all 
impeachments:  when  sitting  for  that  purpose,  they  shall  be  on 
oath  or  affirmation.  "When  the  President  of  the  United  States 
is  tried,  the  Chief  Justice  shall  preside;  and  no  person  shall 
be  convicted  without  the  concurrence  of  two-thirds  of  the  mem- 
bers present. 

Clause  7.  Judgment  in  cases  of  impeachment  shall  not  ex- 
tend further  than  to  removal  from  office,  and  disqualification 
to  hold  and  enjoy  any  office  of  honor,  trust,  or  profit  under  the 
United  States;  but  the  party  convicted  shall  nevertheless  be 
liable  and  subject  to  indictment,  trial,  judgment  and  punish- 
ment, according  to  law. 

Section  1Y.— Clause  1.  The  times,  places  and  manner  of 
holding  elections  for  Senators  and  Kepresentatives  shall  be 
prescribed  in  each  State  by  the  Legislature  thereof;  but  the 
Congress  may  at  any  time,  by  law,  make  or  alter  such  regula- 
tions, except  as  to  the  places  of  choosing  Senators. 

Clause  2.  The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday  in  Decem- 
ber, unless  they  shall  by  law  appoint  a  different  day. 

Section  Y.— Clause  1.  Each  house  shall  be  the  judge  of  the 
elections,  returns  and  qualifications  of  its  own  members,  and  a 
majority  of  each  shall  constitute  a  quorum  to  do  business;  but 
a  smaller  number  may  adjourn  from  day  to  day,  and  may  be 
authorized  to  compel  the  attendance  of  absent  members,  in 
such  manner,  and  under  such  penalties,  as  each  house  may 
provide. 

Clause  2.  Each  house  may  determine  the  rules  of  its  pro- 
ceedings, punish  its  members  for  disorderly  behavior,  and, 
with  the  concurrence  of  two-thirds,  expel  a  member. 

Clause  3.  Each  house  shall  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  publish  the  same,  excepting  such  parts 
as  may  in  their  judgment  require  secrecy;  and  the  yeas  and 

302 


CONSTITUTION   OF  THE    UNITED   STATES 

nays  of  the  members  of  citlicr  house  on  any  question  shall, 
at  the  desire  of  one-fifth  of  those  present,  be  entered  on  the 
journal. 

Clause  4.  Neither  house,  during  the  session  of  Congress, 
shall,  without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in  which 
the  two  houses  shall  be  sitting. 

Section  YI.  — Clause  1.  The  Senators  and  Eepresentatives 
shall  receive  a  compensation  for  their  services,  to  be  ascer- 
tained by  law,  and  paid  out  of  the  treasury  of  the  United 
States.  They  shall  in  all  cases,  except  treason,  felony  and 
breach  of  the  peace,  be  privileged  from  arrest  during  their 
attendance  at  the  session  of  their  respective  houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any  speech  or 
debate  in  either  house,  they  shall  not  be  questioned  in  any  other 
place. 

Clause  2.  No  Senator  or  Eepresentative  shall,  during  the 
time  for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall  have 
been  created,  or  the  emoluments  whereof  shall  have  been  in- 
creased, during  such  time;  and  no  person  holding  any  office 
under  the  United  States  shall  be  a  member  of  either  house  dur- 
ing his  continuance  in  office. 

Section  VII. — Clause  1.  All  bills  for  raising  revenue  shall 
originate  in  the  House  of  Representatives;  but  the  Senate  may 
propose  or  concur  with  amendments,  as  on  other  bills. 

Clause  2.  Every  bill  which  shall  have  passed  the  House  of 
Eepresentatives  and  the  Senate,  shall,  before  it  become  a  law, 
be  presented  to  the  President  of  the  United  States;  if  he  ap- 
prove, he  shall  sign  it,  but  if  not,  he  shall  return  it,  with  his 
objections,  to  that  house  in  which  it  shall  have  originated, 
who  shall  enter  the  objections  at  large  on  their  journal,  and 
proceed  to  reconsider  it.  If  after  such  reconsideration,  two- 
thirds  of  that  house  shall  agree  to  pass  the  bill,  it  shall  be  sent, 
together  with  the  objections,  to  the  other  house,  by  which  it 
shall  likewise  be  reconsidered,  and  if  approved  by  two-thirda 
of  that  house,  it  shall  become  a  law.  But  in  all  such  cases 
the  votes  of  both  houses  shall  be  determined  by  yeas  and  nays, 
and  the  names  of  the  persons  voting  for  and  against  the  bill 

303 


TBE   AMERICAN   CONSTITUTIONAL   SYSTEM 

shall  be  entered  on  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sunday  excepted)  after  it  shall  have  been  presented  to 
him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress  by  their  adjournment  prevent 
its  return,  in  which  case  it  shall  not  be  a  law. 

Clause  3.  Every  order,  resolution  or  vote,  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives  may  be 
necessary  (except  on  a  question  of  adjournment),  shall  be  pre- 
sented to  the  President  of  the  United  States;  and  before  the 
same  shall  take  effect,  shall  be  approved  by  him,  or  being 
disapproved  by  him,  shall  be  repassed  by  two-thirds  of  the 
Senate  and  House  of  Representatives,  according  to  the  rules 
and  limitations  prescribed  in  the  case  of  a  bill. 

Section  VIII. — Clause  1.  The  Congress  shall  have  power  to 
lay  and  collect  taxes,  duties,  imposts  and  excises,  to  pay  the 
debts  and  provide  for  the  common  defence  and  general  welfare 
of  the  United  States;  but  all  duties,  imposts  and  excises  shall 
be  uniform  throughout  the  United  States; 

Clause  2.  To  borrow  money  on  the  credit  of  the  United 
States; 

Clause  3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes; 

Clause  4.  To  establish  an  uniform  rule  of  naturalization, 
and  uniform  laws  on  the  subject  of  bankruptcies  through- 
out the  United  States; 

Clause  5.  To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  measures; 

Clause  6.  To  provide  for  the  punishment  of  counterfeiting 
the  securities  and  current  coin  of  the  United  States; 

Clause  7.     To  establish  post-offices  and  post-roads; 

Clause  8.  To  promote  the  progress  of  science  and  useful 
arts,  by  securing,  for  limited  times,  to  authors  and  inventors 
the  exclusive  right  to  their  respective  writings  and  discoveries; 

Clause  9.  To  constitute  tribunals  inferior  to  the  Supreme 
Court ; 

Clause  10.  To  define  and  punish  piracies  and  felonies  com- 
mitted on  the  high  seas,  and  offences  against  the  law  of  nations ; 

304 


CONSTITUTION   OF  THE   UNITED   STATES 

Clause  11.  To  declare  war,  grant  letters  of  marque  and  re- 
prisal, and  make  rules  concerning  captures  on  land  and  water; 

Clause  12.  To  raise  and  support  armies,  but  no  appropria- 
tion of  money  to  that  use  shall  be  for  a  longer  term  than  two 
years ; 

Clause  13.     To  provide  and  maintain  a  navy; 

Clause  14.  To  make  rules  for  the  government  and  regula- 
tion of  the  land  and  naval  forces; 

Clause  15.  To  provide  for  calling  forth  the  militia  to  exe- 
cute the  laws  of  the  Union,  suppress  insurrections  and  repel 
invasions; 

Clause  16.  To  provide  for  organizing,  arming,  and  disci- 
plining the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  reserving  to 
the  States  respectively  the  appointment  of  the  officers,  and  the 
authority  of  training  the  militia  according  to  the  discipline 
prescribed  by  Congress; 

Clause  17.  To  exercise  exclusive  legislation  in  all  cases  what- 
soever over  such  district  (not  exceeding  ten  miles  square) 
as  may,  by  cession  of  particular  States,  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority  over  all  places  purchased 
by  the  consent  of  the  Legislature  of  the  State  in  which  the  same 
shall  be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings;  —  And 

Clause  18.  To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the  government 
of  the  United  States,  or  in  any  department  or  officer  thereof. 

Section  IX.— Clause  1.  The  migration  or  importation  of 
such  persons  as  any  of  the  States  now  existing  shall  think  proper 
to  admit,  shall  not  fee  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight,  hut  a  tax  or  duty 
may  fee  imposed  on  such  i^nportation,  not  exceeding  ten  dollars 
for  each  person. 

Clause  2.     The  privilege  of  the  writ  of  habeas  corpus  shall 
not  be  suspended,  unless  when  in  cases  of  rebellion  or  invasion 
the  public  safety  may  require  it. 
20  305 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Vlause  3.  No  bill  of  attainder  or  ex-post-facto  law  shall  be 
passed. 

Clause  4.  No  capitation  or  other  direct  tax  shall  be  laid, 
unless  in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

Clause  5.  No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State. 

Clause  6.  No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to,  or  from,  one  State,  be 
obliged  to  enter,  clear,  or  pay  duties  in  another. 

Clause  7.  No  money  shall  be  drawn  from  the  treasury  but 
in  consequence  of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of  all 
public  money  shall  be  published  from  time  to  time. 

Clause  8.  No  title  of  nobility  shall  be  granted  by  the 
United  States:  And  no  person  holding  any  office  of  profit  or 
trust  under  them,  shall,  without  the  consent  of  the  Congress, 
accept  of  any  present,  emolument,  office,  or  title,  of  any  kind 
whatever,  from  any  king,  prince  or  foreign  state. 

Section  X.— Clause  1.  No  State  shall  enter  into  any  treaty, 
alliance, or  confederation;  grant  letters  of  marque  and  reprisal; 
coin  money;  emit  bills  of  credit;  make  any  thing  but  gold  and 
silver  coin  a  tender  in  payment  of  debts;  pass  any  bill  of  at- 
tainder, ex-post-facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  grant  any  title  of  nobility. 

Clause  2.  No  State  shall,  without  the  consent  of  the  Con- 
gress, lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspection 
laws;  and  the  net  produce  of  all  duties  and  imposts,  laid  by 
any  State  on  imports  or  exports,  shall  be  for  the  use  of  the 
treasury  of  the  United  States;  and  all  such  laws  shall  be  sub- 
ject to  the  revision  and  control  of  the  Congress. 

Clause  3.  No  State  shall,  without  the  consent  of  Congress, 
lay  any  duty  of  tonnage,  keep  troops  or  ships-of-war,  in  time 
of  peace,  enter  into  any  agreement  or  compact  with  another 
State,  or  with  a  foreign  power,  or  engage  in  war,  unless  actu- 
ally invaded,  or  in  such  imminent  danger  as  will  not  admit 
of  delay. 

306 


CONSTITUTION   OF  THE   UNITED   STATES 

AETICL£  n.— Executive  Department 

Section  I.— Clause  1.  The  executive  power  shall  be  vested  in 
a  President  of  the  United  States  of  America.  He  shall  hold 
his  office  during  the  term  of  four  years,  and,  together  with  the 
Vice-President,  chosen  for  the  same  term,  be  elected  as  follows: 

Clause  2.  Each  State  shall  appoint,  in  such  manner  as  the 
Legislature  thereof  may  direct,  a  number  of  Electors,  equal 
to  the  whole  number  of  Senators  and  Eepresentatives  to  which 
the  State  may  be  entitled  in  the  Congress;  but  no  Senator  or 
Eepresentative,  or  person  holding  an  office  of  trust  or  profit 
under  the  United  States,  shall  be  appointed  an  Elector. 

[Clause  3.  The  Electors  shall  meet  in.  their  respective  States, 
and  vote  by  'ballot  for  tivo  persons,  of  whom  one,  at  least,  shall 
not  be  an  inhabitant  of  the  same  State  with  themselves.  And 
they  shall  malce  a  list  of  all  the  persons  voted  for,  and  of  the 
number  of  votes  for  each;  which  list  they  shall  sign  and  certify, 
and  transmit,  sealed,  to  the  seat  of  the  Government  of  the 
United  States,  directed  to  the  president  of  the  Senate.  The 
president  of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the  votes 
shall  then  be  counted.  The  person  having  the  greatest  number 
of  votes  shall  be  the  President,  if  such  numher  be  a  majority 
of  the  whole  number  of  Electors  appointed;  and  if  there  be 
more  than  one,  who  have  such  majority,  and  have  an  equal  num- 
ber of  votes,  then  the  House  of  Eepresentatives  shall  imme- 
diately choose,  by  ballot,  one  of  them  for  President;  and  if  no 
person  have  a  majority,  then,  from  the  five  highest  on  the  list, 
the  said  House  shall,  in  like  manner,  choose  the  President.  But 
in  choosing  the  President,  the  votes  shall  be  taken  by  States, 
the  representation  from  each  State  having  one  vote;  a  quorum 
for  this  purpose  shall  consist  of  a  member  or  members  from 
two-thirds  of  the  States,  and  a  majority  of  all  the  States  shall 
be  necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of 
the  Electors  shall  be  the  Vice-President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them,  byf  ballot,  the  Vice-President.']  The  fore- 
going Clause  was  repealed  in  1804.    It  is  quoted  here  merely  for 

307 


THE  AMERICAN    CONSTITUTIONAL   SYSTEM 

reference.  Article  XII.  of  the  Amendments  replaces  it  in  the 
Constitution,  and  is  here  inserted  instead  of  the  original  Clause. 
Amendment,  Article  XII.  — The  Electors  shall  meet  in  their 
respective  States,  and  vote  by  ballot  for  President  and  Vice- 
President,  one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
the  same  State  with  themselves;  they  shall  name  in  their  bal- 
lots the  person  voted  for  as  President,  and  in  distinct  ballots 
the  person  voted  for  as  Vice-President;  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and 
of  all  persons  voted  for  as  Vice-President,  and  of  the  num- 
ber of  votes  for  each,  which  lists  they  shall  sign  and  cer- 
tify, and  transmit  sealed  to  the  seat  of  the  Government  of 
the  United  States,  directed  to  the  president  of  the  Senate;— the 
president  of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted; — the  person  having  the  greatest 
number  of  votes  for  President,  shall  be  the  President,  if  such 
number  be  a  majority  of  the  whole  number  of  Electors  ap- 
pointed; and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers  not  exceeding  three  on  the 
list  of  those  voted  for  as  President,  the  House  of  Representa- 
tives shall  choose  immediately,  by  ballot,  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  And  if  the  House  of  Representatives 
shall  not  choose  a  President  whenever  the  right  of  choice  shall 
devolve  upon  them,  before  the  fourth  day  of  March  next  follow- 
ing, then  the  Vice-President  shall  act  as  President,  as  in  the 
case  of  death  or  other  constitutional  disability  of  the  Presi- 
dent. The  person  having  the  greatest  number  of  votes  as  Vice- 
President,  shall  be  the  Vice-President,  if  such  number  be  a 
majority  of  the  whole  number  of  Electors  appointed;  and  if  no 
person  have  a  majority,  then  from  the  two  highest  numbers  on 
the  list,  the  Senate  shall  choose  the  Vice-President;  a  quorum 
for  the  purpose  shall  consist  of  two-thirds  of  the  whole  num- 
ber of  Senators,  and  a  majority  of  the  whole  number  shall  be 

308 


CONSTITUTION   OF  THE   UNITED   STATES 


necessary  to  a  choice.  -  But  no  person  constitutionally  ineligible 
to  the  office  of  President  shall  be  eligible  to  that  of  Vice-Presi- 
dent of  the  United  States. 

Clause  4.  The  Congress  may  determine  the  time  of  choosing 
the  Electors,  and  the  day  on  which  they  shall  give  their  votes; 
which  day  shall  be  the  same  throughout  the  United  States. 

Clause  5.  No  person  except  a  natural-born  citizen,  or  a  citi- 
zen of  the  United  States  at  the  time  of  the  adoption  of  this  Con- 
stitution, shall  be  eligible  to  the  office  of  President;  neither 
shall  any  person  be  eligible  to  that  office  who  shall  not  have 
attained  to  the  age  of  thirty-five  years,  and  been  fourteen  years 
resident  within  the  United  States. 

Clause  6.  In  case  of  the  removal  of  the  President  from  of- 
fice, or  of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve  on 
the  Vice-President,  and  the  Congress  may  by  law  provide  for 
the  case  of  removal,  death,  resignation,  or  inability,  both  of  the 
President  and  Vice-President,  declaring  what  officer  shall  then 
act  as  President;  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed,  or  a  President  shall  be  elected. 

Clause  7.  The  President  shall,  at  stated  times,  receive  for 
his  services  a  compensation  which  shall  neither  be  increased  nor 
diminished  during  the  period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  period  any  other 
emolument  from  the  United  States,  or  any  of  them. 

Clause  8.  Before  he  enter  on  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation:— "I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  execute  the  office  of 
President  of  the  United  States,  and  will,  to  the  best  of  my 
ability,  preserve,  protect,  and  defend  the  Constitution  of  the 
United  States. ' ' 

Section  1\.— Clause  1.  The  President  shall  be  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States,  when  called  into  the  actual 
service  of  the  United  States;  he  may  require  the  opinion,  in 
writing,  of  the  principal  officer  in  each  of  the  executive  de- 
partments, upon  any  subject  relating  to  the  duties  of  their  re- 
spective offices;  and  he  shall  have  power  to  grant  reprieves  and 

309 


THE  AMERICAN   CONSTITUTIONAL   SYSTEM 

pardons  for  offences  against  the  United  States,  except  in  cases 
of  impeachment. 

Clause  2.  He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur;  and  he  shall  nominate,  and  by 
and  with  the  advice  and  consent  of  the  Senate  shall  appoint 
ambassadors,  other  public  ministers  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law;  but  the  Congress  may  by  law  vest 
the  appointment  of  such  inferior  officers,  as  they  think  proper, 
in  the  President  alone,  in  the  courts  of  law,  or  in  the  heads  of 
departments. 

Clause  3.  The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate  by  grant- 
ing commissions  which  shall  expire  at  the  end  of  their  next  ses- 
sion. 

Section  III.— He  shall  from  time  to  time  give  to  the  Con- 
gress information  of  the  state  of  the  Union,  and  recommend  to 
their  consideration  such  measures  as  he  shall  judge  necessary 
and  expedient;  he  may,  on  extraordinary  occasions,  convene 
both  houses,  or  either  of  them,  and  in  case  of  disagreement 
between  them  \vith  respect  to  the  time  of  adjournment,  he  may 
adjourn  them  to  such  time  as  he  shall  think  proper;  he  shall  re- 
ceive ambassadors  and  other  public  ministers;  he  shall  take 
care  that  the  laws  be  faithfully  executed,  and  shall  commission 
all  the  officers  of  the  United  States. 

Section  IV.— The  President,  Vice-President,  and  all  civil 
officers  of  the  United  States,  shall  be  removed  from  office  on 
impeachment  for,  and  conviction  of,  treason,  bribery,  or  other 
high  crimes  and  misdemeanors. 


ASTICLE  ni. — Judicial  Department 

Section  I.— The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as 
the  Congress  may  from  time  to  time  ordain  and  establish.    The 

310 


CONSTITUTION   OF  THE   UNITED   STATES 

judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation  which  shall  not  be 
diminished  during  their  continuance  in  office. 

Section  II. — Clause  1.  The  judicial  power  shall  extend  to 
all  cases,  in  law  and  equity,  arising  under  this  Constitution,  the 
laws  of  the  United  States,  and  treaties  made,  or  which  shaU 
be  made,  under  their  authority;— to  all  cases  affecting  ambassa- 
dors, other  public  ministers,  and  consuls; — to  all  cases  of  ad- 
miralty and  maritime  jurisdiction;— to  controversies  to  which 
the  United  States  shall  be  a  party;— to  controversies  between 
two  or  more  States;  — between  a  State  and  citizens  of  another 
State;— between  citizens  of  different  States;— between  citizens 
of  the  same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State,  or  the  citizens  thereof,  and  for- 
eign states,  citizens,  or  subjects. 

Clause  2.  In  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls,  and  those  in  which  a  State  shall  be  a 
party,  the  Supreme  Court  shall  have  original  jurisdiction.  In 
all  the  other  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with  such 
exceptions  and  under  such  regulations  as  the  Congress  shall 
make. 

Clause  3.  The  trial  of  all  crimes,  except  in  cases  of  im- 
peachment, shall  be  by  jury,  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed;  but 
when  not  committed  within  any  State,  the  trial  shall  be  at  such 
place  or  places  as  the  Congress  may  by  law  have  directed. 

Section  111.  — Clause  1.  Treason  against  the  United  States 
shall  consist  only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort. 

Clause  2.  No  person  shall  be  convicted  of  treason,  unless  on 
the  testimony  of  two  witnesses  to  the  same  overt  act,  or  on  con- 
fession in  open  court. 

Clause  3.  The  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason ;  but  no  attainder  of  treason  shall  work  cor- 
ruption of  blood,  or  forfeiture,  except  during  the  life  of  the 
person  attainted. 

311 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 


ABTICLE  IV.— General  Provisions 

Section  I.— Full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records  and  judicial  proceedings  of  every 
other  State;  and  the  Congress  may  by  general  laws  prescribe 
the  manner  in  which  such  acts,  records  and  proceedings  shall 
be  proved,  and  the  effect  thereof. 

Section  II.— Clause  1.  The  citizens  of  each  State  shall  be 
entitled  to  all  privileges  and  immunities  of  citizens  in  the 
several  States. 

Clause  2.  A  person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice,  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority  of 
the  State  from  which  he  fled,  be  delivered  up,  to  be  removed 
to  the  State  having  jurisdiction  of  the  crime. 

Clause  3.  No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged  from  such 
service  or  labor,  hut  shall  be  delivered  up  on  claim  of  the  party 
to  whom  such  service  or  labor  may  be  due. 

Section  III.  — Clause  1.  New  States  may  be  admitted  by  the 
Congress  into  this  Union;  but  no  new  State  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  State;  nor  any 
State  be  formed  by  the  junction  of  two  or  more  States,  or 
parts  of  States,  without  the  consent  of  the  Legislatures  of  the 
States  concerned  as  well  as  of  the  Congress. 

Clause  2.  The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  terri- 
tory or  other  property  belonging  to  the  United  States;  and 
nothing  in  this  Constitution  shall  be  so  construed  as  to  pre- 
judice any  claims  of  the  United  States,  or  of  any  particular 
State. 

Section  IV.— The  United  States  shall  guarantee  to  every 
State  in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion,  and  on  application  of 
the  Legislature,  or  of  the  executive  (when  the  Legislature  can- 
not be  convened),  against  domestic  violence. 

312 


CONSTITUTION   OF  THE   UNITED   STATES 

AETICLE  v.— Power  of  Amendment 

The  Congress,  whenever  two-thirds  of  both  houses  shall  deem 
it  necessary,  shall  propose  amendments  to  this  Constitution,  or, 
on  the  application  of  the  Legislatures  of  two-thirds  of  the 
several  States,  shall  call  a  convention  for  proposing  amend- 
ments, which,  in  either  case,  shall  be  valid  to  all  intents  and 
purposes,  as  part  of  this  Constitution,  when  ratified  by  the 
Legislatures  of  three-fourths  of  the  several  States,  or  by  con- 
ventions in  three-fourths  thereof,  as  the  one  or  the  other  mode 
of  ratification  may  be  proposed  by  the  Congress;  provided  that 
no  amendment  which  may  be  made  prior  to  the  year  one  thou- 
sand eight  hundred  and  eight  shall  in  any  manner  affect  the 
first  and  fourth  clauses  in  the  ninth  section  of  the  first  article; 
and  that  no  State,  without  its  consent,  shall  be  deprived  of  its 
equal  suffrage  in  the  Senate. 


AETICLE  VI.—  Miscellaneous  ProvisionB 

Clause  1.  All  debts  contracted,  and  engagements  entered 
into,  before  the  adoption  of  this  Constitution,  shall  be  as  valid 
against  the  United  States  under  this  Constitution,  as  under  the 
Confederation. 

Clause  2.  This  Constitution,  and  the  laws  of  the  United 
States  which  shall  be  made  in  pursuance  thereof;  and  all 
treaties  made,  or  which  shall  be  made,  under  the  authority  of 
the  United  States,  shall  be  the  supreme  law  of  the  land ;  and 
the  judges  in  every  State  shall  be  bound  thereby,  any  thing  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. 

Clause  3.  The  Senators  and  Eepresentatives  before  men- 
tioned, and  tlie  members  of  the  several  State  Legislatures,  and 
all  executive  and  judicial  officers,  both  of  the  United  States  and 
of  the  several  States,  shall  be  bound  by  oath  or  affirmation  to 
support  this  Constitution ;  but  no  religious  test  shall  ever  be 
required  as  a  qualification  to  any  office  or  public  trust  under 
the  United  States. 

313 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

AETICIE  VII.— Ratification  of  the  Constitution 

The  ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 

Done  in  convention,  by  the  unanimous  consent  of  the  States 
present,  the  seventeenth  day  of  September,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty-seven,  and 
of  the  Independence  of  the  United  States  of  America  the 
twelfth. 
In  witness  whereof,  we  have  hereunto  subscribed  our  names. 

George  Washington, 
President,  and  Deputy  of  Virginia. 


NEW  HAMPSHIRE 
John  Langdon 
Nicholas  Gilman 

MASSACHUSETTS 
Nathaniel  Gorham 
Rurus  King 

CONNECTICUT 
William  Samuel  Johnson 
Roger  Sherman 

NEW  YORK 

Alexander  Hamilton 

NEW  JERSEY 
William  Livingston 
David  Brearley 
William  Paterson 
Jonathan  Dayton 

PENNSYLVANIA 
Benjamin  Franklin 
Thomas  Mifb-lin 
Robert  Morris 
George  Clymer 
Thomas  Fitzsimons 
Jared  Ingersoll 
James  Wilson 
gouvernkur  morris 


DELAWARE 
George  Read 
Gunning  Bedford,  Jr. 
John  Dickinson 
Richard  Bassett 
Jacob  Broom 

MARYLAND 

James  McHenry 

Daniel  of  St.  Thomas  Jenifer 

Daniel  Carroll 

VIRGINIA 
John  Blair 
James  Madison,  Jr. 

NORTH  CAROLINA 
William  Blount 
Richard  Dobbs  Spaight 
Hugh  Williamson 

SOUTH  CAROLINA 
John  Rutledge 
Charles  C.  Pinckney 
Charles  Pinckney 
Pierce  Butler 

GEORGIA 

William  Few 
Abraham  Baldwin 
Attest:  William  Jackson,  Secretary 

314 


CONSTITUTION   OF   THE   UNITED   STATES 


AMENDMENTS 

TO  THE  CONSTITUTION   OP  THE  UNITED  STATES,    RATIFIED  ACCORD- 
ING TO  THE  PROVISIONS  OF  THE  FIFTH  ARTICLE 
OF  THE  FOREGOING  CONSTITUTION 

Article  I. — Congress  shall  make  no  law  respecting  an  es- 
tablishment of  religion,  or  prohibiting  the  free  exercise  thereof ; 
or  abridging  the  freedom  of  speech,  or  of  the  press;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
government  for  redress  of  grievances. 

Article  II. — A  well-regulated  militia,  being  necessary  to  the 
security  of  a  free  State,  the  right  of  the  people  to  keep  and 
bear  arms  shall  not  be  infringed. 

Article  III. — No  soldiers  shall,  in  time  of  peace,  be  quar- 
tered in  any  house,  without  the  consent  of  the  owner,  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

Article  IV. — The  right  of  the  people  to  be  secure  in  their 
persons,  houses,  papers  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no  warrants 
shall  issue,  but  upon  probable  cause,  supported  by  oath  or 
aflSrmation,  and  particularly  describing  the  place  to  be  searched, 
and  the  persons  or  things  to  be  seized. 

Article  V. — No  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia,  when  in  actual  service  in  time 
of  war  and  public  danger;  nor  shall  any  person  be  subject 
for  the  same  offence  to  be  twice  put  in  jeopardy  of  life  or 
limb;  nor  shall  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself,  nor  to  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law;  nor  shall  private 
property  be  taken  for  public  use,  without  just  compensation. 

Article  VI. — In  all  criminal  prosecutions,  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall  have 
been    committed,    which    district    shall    have    been    previously 

315 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

ascertained  by  law,  and  to  be  informed  of  the  nature  and 
cause  of  the  accusation;  to  be  confronted  with  the  witnesses 
against  him;  to  have  compulsory  process  for  obtaining  wit- 
nesses in  his  favor,  and  to  have  the  assistance  of  counsel  for 
his  defence. 

Article  VII.— In  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right  of  trial 
by  jury  shall  be  preserved,  and  no  fact  tried  by  a  jury  shall 
be  otherwise  re-examined  in  any  court  of  the  United  States 
than  according  to  the  rules  of  the  common  law. 

Article  VIII.— Excessive  bail  shall  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  and  unusual  punishments 
inflicted. 

Article  IX.— The  enumeration  in  the  Constitution  of  certain 
rights,  shall  not  be  construed  to  deny  or  disparage  others  re- 
tained by  the  people. 

Article  X. — The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  re- 
served to  the  States  respectively,  or  to  the  people. 

Article  XI.  — The  judicial  power  of  the  United  States  shall 
not  be  construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States  by 
citizens  of  another  State,  or  by  citizens  or  subjects  of  any 
foreign  state. 

Article  XII.— See  pages  308  and  309. 

Article  XIII.— /Section  1.  Neither  slavery  nor  involuntary 
servitude,  except  as  a  punishment  for  crime,  whereof  the 
person  shall  have  been  duly  convicted,  shall  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction. 

Section  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 

Article  XIY.— Section  1.  All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State  wherein 
they  reside.  No  State  shall  make  or  enforce  any  law  which 
shall  abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property,  without  due  process  of  law,  nor  deny  to 

316 


CONSTITUTION   OF  THE   UNITED   STATES 

any  person  within  its  jurisdietion  the  equal  protection  of  the 
laws. 

Section  2.  Kepresentatives  shall  be  appointed  among  the 
several  States  according  to  their  respective  numbers,  counting 
the  vphole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  Electors  for  President  and  Vice-President  of  the 
United  States,  Representatives  in  Congress,  the  executive  or 
judicial  officers  of  a  State,  or  the  members  of  the  Legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age  and  citizens  of  the  United 
States,  or  in  any  way  abridged  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State. 

Section  3.  No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  Elector  of  President  or  Vice-President,  or  hold 
any  office,  civil  or  military,  under  the  United  States,  or  under 
any  State,  who,  having  previously  taken  an  oath  as  a  member 
of  Congress,  or  as  an  officer  of  the  United  States,  or  as  a  mem- 
ber of  any  State  Legislature,  or  as  an  executive  or  judicial  of- 
ficer of  any  State,  to  support  the  Constitution  of  the  United 
States,  shall  have  engaged  in  insurrection  or  rebellion  against 
the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may,  by  a  vote  of  two-thirds  of  each  house,  re- 
move such  disability. 

Section  4.  The  validity  of  the  public  debt  of  the  United 
States,  authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppressing  in- 
surrection or  rebellion,  shall  not  be  questioned.  But  neither 
the  United  States  nor  any  State  shall  assume  or  pay  any  debt 
or  obligation  incurred  in  aid  of  insurrection  or  rebellion  against 
the  United  States,  or  any  claim  for  the  loss  or  emancipation 
of  any  slave;  but  all  such  debts,  obligations,  and  claims  shall 
be  held  illegal  and  void. 

Section  5.  Congress  shall  have  power  to  enforce,  by  appro- 
priate legislation,  the  provisions  of  this  article. 

317 


THE   AMERICAN   CONSTITUTIONAL   SYSTEM 

Article  XY.— Section  1.  The  rights  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States,  or  by  any  State,  on  account  of  race,  color,  or 
previous  condition  of  servitude. 

Section  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation. 


318 


INDEX 


INDEX 


Adams,  Charles  F.,  quoted  as 
to  right  of  secession,  68 

Admiralty  and  maritime  juris- 
diction, 138 

Admission  of  States,  263  ff. 

Allegiance  of  inhabitants  of 
ceded  territory,  257  f. 

Appeals  from  state  to  federal 
courts,  169 

Appellate  jurisdiction  of  fed- 
eral Supreme  Court,  48  ff. 


Citizenship,  state  and  national, 
241  ff. ;  of  inhabitants  of  ter- 
ritories, 257  ff. 

Civil  Rights,  guarantee  of,  in 
Fourteenth  Amendment,  181 
ff. 

Civil  Rights  Act,  182  ff. 

Civil  War,  constitutional  doc- 
trine upon  which  fought,   78 

Coercion  of  States,  70  ff.;  154 


Bankruptcy,  federal  corttrol  of,    Comity,  interstate,  274  ff 


137 

Black,  Attorney-General,  doc- 
trine of,  as  to  coercion  of 
States,  70  ff. 

Brannon,  ' '  The  Fourteenth 
Amendment, ' '  cited,  242 

Brown,  Justice,  opinion  of,  in 
Downes  v.  Bidwell,  217  ff. 

Brownson,  ' '  The  American  Re- 
public," cited,  88,  270 

Buchanan,  President,  doctrine 
of,  as  to  coercion  of  States, 
70  ff. 

Burgess,  J.  W.,  "Political  Sci- 
ence and  Comparative  Consti- 
tutional Law, ' '  quoted,  5, 
14;  views  of,  criticized,  16  f. 


Common  defense,  144  f. 

Compact,  theory  of,  in  Ameri- 
can political  philosophy,  22  f. 

Compacts  between  States,  284 
ff. 

Concurrent  powers,  135  ff. 

Congress,  law  of,  first  held  un- 
constitutional, 39 

Constitutions,  written,  province 
of,  7 

Constitution  of  United  States, 
theories  as  to  nature  of,  12 
ff. ;  liberal  construction  of, 
36,  45 

Cooley,  T.  M.,  "Principles  of 
Constitutional  Law, ' '  quoted, 
113;  "Constitutional  Limita- 


tions," quoted,  186 
Calhoun,  John  C,  quoted  as  to    Corporations,  foreign,  state 
constitutionality     of     Judici-        control  of,  282  f. 
ary  Act,  49;  doctrine  of  nul-    Criminal  jurisdiction  of  United 
lification  of,  54  " 

Carlisle,  John  G.,  address  of, 

quoted,  195,  223,  232 
Chamberlain,  J.  I.,  cited,  110 
21 


States,  103 
Curtis,  B.  R.,  "Jurisdiction  of 
the    United    States    Courts, ' ' 
quoted,  169 


321 


INDEX 


Delegated  powers,  139 
District  of  Columbia,  status  of, 

239  f. 
Divorce,  recognition  of  decrees 

of,  in  the  several  states,  276 

ff. 
Dorr 's  Rebellion,  115  f. 
Dred  Scott  case,  243  S. 
Due  process  of  law,  189 

Elections,  federal  control  of, 

164  ff. 
Eminent  domain,  federal  power 

of,  131 
Equal  protection  of  the  laws, 

188  f. 
Equality  of  States,  264  ff. 
Exclusive  powers,  135  ff. 
Express  powers,  141  ff. 
Extradition  of  criminals,  156, 

161  ff. 


Hoar,  Senator,  views  of,  as  to 
annexation  of  territory,  202 

Hoist,  von,  ' '  Constitutional 
Law,"  quoted,  15;  "Consti- 
tutional History  of  the  Uni- 
ted States, ' '  cited,  64 

Hurd,  J.  C,  ' '  Theory  of  our 
National    Existence, ' '    cited, 


Implied  powers,  doctrine  of,  40, 

44  f.,  141  ff. 
Incorporated  territories,  224  ff. 
Indians,  political  status  of, 

250  ff. 
Inherent  sovereignty,   doctrine 

of,  criticized,  146  ff.,  194 
Interstate  comity,  274  ff. 
Interstate   commerce,   federal 

control  of,  52,  137  ff. 
Interstate  relations,   272   ff. 


Federal  state,  origin  of,  8;  de- 
fined, 9 ;  distinguished  from 
Confederation  of  States,  10 

Foraker  Act,  213 

Foster,  Roger,  "On  the  Consti- 
tution, ' '  cited,  13 

Fourteenth  Amendment,  pur- 
pose of,  180;  interpretation 
of,  181  ff.;  245 

Fugitive  slaves,  rendition  of, 
156  ff. 

General  Welfare,  144 

Guana  Islands,  annexation  of, 

196 
Guaranty  clause  of  republican 

form  of  government,  110  ff. 

Hamilton,  Alexander,  quoted, 
152 

Hare,  * '  American  Constitution- 
al Law, ' '  quoted,  145 

Hartford    Convention,    64 

Hawaii,  annexation  of,  201 ; 
status  of,  233  ff. 


Jameson,  J.  A.,  "The  Consti- 
tutional Convention, ' '  cited, 
271 

Jefferson,  Thomas,  constitu- 
tional doctrine  of,  62;  doubts 
the  constitutionality  of  an- 
nexation of  Louisiana,  192  f. 

Joint  resolution,  annexation  of 
territory  by,  200  f. 

Judiciary  Act,  of  1789,  36;  con- 
stitutionality of  25th  section 
of,  49 

Limitations,  constitutional,   150 
Lincoln,   President,   constitu- 
tional doctrines  of,  78  ff. 

Madison,  James,  quoted,  22,  25, 

27,  73,  120 
Magoon,     Charles,     report     on 

legal     status     of     territories, 

cited,  147 
Mason,  George,  quoted,  26 
McKinley,  President,  order  of, 

criticized,  199 


322 


INDEX 


Merriam,  (!.  E.,  ' '  History  of 
American  Political  Theo- 
ries, ' '  cited,  29 

National  sovereignty,  develop- 
ment of,  34  ff. 

National  State,  see  "Federal 
State ' ' 

Naturalization,  138 

Nullification,  doctrine  of,  10 
f . ;  ordinance  of  South  Caro- 
lina of,  54  f. 

Personal  liberty  laws,  161 
Philippines,   government   of, 

210 
Police  power,  defined,  186 
Porto  Eico,  government  of, 

212  f. 
Preamble,  construction  of,  145 
President,  powers  of,  over  terri- 
tories, 209 
Privileges    and    immunities    of 
citizens  of  the  United  States, 
185  ff. 

Eawle,  ' '  View  of  the  Consti- 
tution, ' '   quoted,   63 

Reconstruction,  theories  of,  85 
ff . ;  constitutionality  of,  be- 
fore the  Supreme  Court,  93 
ff. 

Referendum,   constitutionality 
of,  114 

Removal  of  suits  from  state  to 
federal  courts,  169  ff. 

Republican  form  of  govern- 
ment, definition  of,  113  ff. 

Reserved  powers  of  the  States, 
139 

Rivier,  "Principes  du  Droit 
des  Gens,"  cited,  257 

Secession,  right  of,  in  a  federal 
State,  10 ;  not  asserted  in 
1789,  26  ff.;  threats  of,  61 
ff. ;  moral  right  of,  67  ff. ;  de- 
clared unconstitutional  by 
the  Supreme  Court,  95,  98  f. 


Small,  A.  W.,  "The  Begin- 
nings of  American  National- 
ity," quoted,  20 

Sovereignty,  defined,  4  f. ;  na- 
tional, development  of,  34  ff. 

Spooner  Amendment,  210 

State,  definition  of,  3 ;  cannot 
be  created  by  a  union  of 
States,   6 

States,  of  the  American  Union, 
suability  of,  37,  172,  289; 
coercion  of,  70  ff . ;  admission 
of,  263  f.;  equality  of,  264 
ff. ;  compacts  between,  284 
ff. ;  suits  between,  286 

States  Rights,  theory  of,  12  ff. 

Story,  Joseph,  ' '  Commenta- 
ries, ' '  quoted,  146 ;  quoted  as 
to  changed  attitude  of  the 
Supreme  Court,  57 

Suability  of  a  State,  37,  172  ff., 
286 

Suits  between  States,  286  ff. 

Taney,  Chief  Justice,  views  of, 
56  f.,  65  f. 

Taxation,  of  federal  agency  by 
a  State,  52 

Tenth  Amendment,  140 

Territories,  power  to  acquire, 
190  ff.;  status  of,  205  ff.; 
government  of,  207  ff.;  civil 
rights  of  inhabitants  of,  215 
ff. 

Treaty-making  power,  of  Uni- 
ted States,  incompetence  of, 
to  incorporate  territory,  225 
ff.,  261 

Tucker,  St.  George,  quoted,  62 

Virginia  and  Kentucky  Eesolu- 

tions,   38 
Virginia  coupon  cases,  170  ff. 

Walker,  F.  A.,  quoted,  20 
Willoughby,    ' '  Nature    of    the 
State, ' '  cited,  3,  8 


323 


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